2017 (6) TMI 485 - AT - Income Tax

Addition u/s 69C - unexplained expenditure in respect of bogus purchases - G.P. determination - Held that - We find that the assessee has raised the issue in the cross-objection that the addition sustained towards GP on bogus purchases at the rate of 12% over and above, the GP of 7.5% already declared by the assessee. The AR submitted before the Bench that the CIT(A) has erred in sustaining 12% of GP on such bogus purchases without allowing any credit towards gross profit rate already declared by the assessee in the books of accounts included in the so called bogus purchases and prayed that GP of 4.7% should be sustained which worked out by subtracting 7.25% of the GP declared by the assessee from 12% of GP applied by the CIT(A). We find that it would be reasonable if GP instead of 4.75% as prayed by the assessee, the GP of 8% is applied in place of 12%. We, therefore, direct the AO to apply to GP 8% on the bogus purchases. The cross-objection filed by the assessee is partly allowed.

Summary

Issues:
1. Deletion of addition under section 69C of the Income Tax Act, 1961 for unexplained expenditure on bogus purchases.
2. Challenge to the sustenance of addition to the tune of 12% of total bogus purchases by the assessee.
3. Dispute over the profit element embedded in the impugned purchases and the appropriate profit percentage to be added back to the appellant's profit.

Detailed Analysis:
1. The appeal involved cross-appeals against the order passed by the ld.CIT(A)-35, Mumbai for the assessment year 2010-11. The common issue raised by the revenue was the deletion of addition amounting to ?62,90,240 under section 69C of the Income Tax Act, 1961, concerning unexplained expenditure on bogus purchases. The AO added the amount to the total income of the assessee based on information from the Sales Tax Department of the Government of Maharashtra, indicating that the suppliers were engaged in providing accommodation entries for bogus purchases. The ld.CIT(A) partly allowed the appeal by sustaining 12% of such purchases as GP, considering the genuineness of the purchases but disputing the authenticity of the sellers. The Tribunal upheld the decision, emphasizing the disallowance of the profit element embedded in the purchases.

2. The assessee filed a cross-objection challenging the order of ld.CIT(A) regarding the sustenance of the addition of 12% of total bogus purchases. The appellant argued that the GP rate of 8% should be applied instead of the 12% sustained by the ld.CIT(A), considering the GP margin already declared by the assessee. The Tribunal partially allowed the cross-objection, directing the AO to apply an 8% GP on the bogus purchases, thereby modifying the percentage applied by the ld.CIT(A) in the original order.

3. The dispute over the profit element embedded in the impugned purchases was a crucial aspect of the case. The ld.CIT(A) relied on the decision of the Hon'ble Gujarat High Court in a similar case to determine the appropriate profit element percentage to be added back to the appellant's profit. The Tribunal, after considering the contentions of both parties, decided that 8% GP should be applied instead of the 12% sustained by the ld.CIT(A), taking into account the GP rate already declared by the assessee. This decision aimed to strike a balance between the genuine purchases made by the assessee and the disputed authenticity of the sellers, ensuring a fair assessment of the profit element involved in the transactions.

In conclusion, the judgment addressed the issues of deletion of addition under section 69C, challenge to the sustenance of addition on bogus purchases, and determination of the profit element embedded in the impugned purchases. The Tribunal's decision provided a nuanced approach to balancing the interests of both the revenue and the assessee, ensuring a fair and just resolution to the disputed aspects of the case.