2018 (2) TMI 1705 - AT - Income Tax

Bogus purchases - rejection of books of accounts - notice u/s 133(6) - addition equivalent to 25% of the purchases - profit determination - Held that - Once the AO has rejected the books of accounts by invoking the provisions of section 145(3) the income of the assessee was required to be assessed on the basis of a reasonable and proper estimates. We set aside the matter to the record of the Assessing Officer for determination of the income of the assessee on the basis of the proper and reasonable estimates as well as best judgment by applying GP or NP rate. We may clarified that even after rejection of books of accounts it may not necessarily resulting a trading addition if the GP rate declared by the assessee is found to be more than the Bench Mark to be applied by the AO. Hence, the AO is directed to apply the proper GP rate on the basis of past history of the assessee.

Summary

Issues Involved:
1. Dismissal of the appeal by the CIT(A) for non-appearance without providing adequate opportunity of hearing.
2. Rejection of books of accounts by the AO under section 145(3).
3. Trading addition of ?14,97,088/- by disallowing 25% of alleged unverifiable purchases.
4. Non-compliance with the decision of the Hon’ble ITAT in similar cases.
5. Awarding appropriate costs to the assessee.

Issue-wise Detailed Analysis:

1. Dismissal of the Appeal by the CIT(A) for Non-Appearance:
The assessee contended that the CIT(A) dismissed the appeal for non-appearance without providing adequate opportunity for a hearing. The CIT(A) confirmed the AO's actions without considering the merits of the case. The Tribunal acknowledged this procedural lapse and recalled the earlier order for fresh adjudication.

2. Rejection of Books of Accounts by the AO under Section 145(3):
The AO rejected the books of accounts under section 145(3) due to unverifiable purchases from ten suppliers. Notices issued to these suppliers under section 133(6) were either returned unserved or uncomplied. The AO concluded that the books did not reflect a true and fair view of the income, leading to their rejection. The Tribunal upheld the rejection of the books of accounts, noting that the proper course of action after such rejection is to assess the income based on reasonable and proper estimates.

3. Trading Addition of ?14,97,088/- by Disallowing 25% of Alleged Unverifiable Purchases:
The AO made a trading addition by disallowing 25% of the unverifiable purchases amounting to ?59,88,350/-. The Tribunal observed that the AO should have assessed the income based on the gross profit (GP) rate rather than making a direct addition to the book results. The Tribunal referred to the case of CIT vs. M/s Allied Gems Corporation, emphasizing that once books are rejected, the income should be assessed based on the best judgment using the GP rate. The Tribunal set aside this issue to the AO for determining the income based on proper and reasonable estimates, considering the past GP rates.

4. Non-Compliance with the Decision of the Hon’ble ITAT in Similar Cases:
The assessee argued that the CIT(A) did not follow the ITAT's decisions in similar cases where unverifiable purchases were involved. The Tribunal noted that in the assessee's own case for A.Y. 2006-07, the ITAT had upheld the rejection of books due to unverifiable purchases and directed income estimation based on the GP rate. The Tribunal found no error in the CIT(A)'s reliance on this precedent and directed the AO to apply a proper GP rate based on the assessee's past history.

5. Awarding Appropriate Costs to the Assessee:
The assessee requested the award of appropriate costs. However, the Tribunal did not specifically address this issue in the judgment.

Conclusion:
The Tribunal partially allowed the appeal for statistical purposes, directing the AO to reassess the income based on a reasonable GP rate derived from the assessee's past history. The Tribunal emphasized that even after rejecting the books of accounts, a trading addition is not necessary if the declared GP rate is higher than the benchmark to be applied. The procedural lapse in dismissing the appeal for non-appearance was acknowledged, and the matter was set aside for fresh adjudication.