2018 (9) TMI 216 - AT - Income Tax

Bogus purchases - estimation of profit - Held that - The notices were issued by the AO u/s. 133(6)of the Act. One notice returned unserved and from the remaining two no reply was received by the AO. AO had issued these notices in the address given by the assessee. Also we find that the AO does not dispute the sales made by the assessee. In such a context, only the profit embedded in such bogus purchases has to be estimated and brought to tax. In the case of CIT vs. Simit P. Sheth (2013 (10) TMI 1028 - GUJARAT HIGH COURT) has held that where purchases were not bogus but were made from parties other than those mentioned in the books of account, not entire purchase price but only profit element embedded in such purchases can be added to income of the assessee. Set aside the order of the Ld. CIT(A) and direct the AO to estimate the profit @ 12. 5% on the disputed purchases of ₹ 36, 73, 217/- and bring to tax ₹ 4, 59, 150/- in place of ₹ 36, 73, 217/- done by him.

Issues:
1. Allegation of non-genuine purchases without independent evidence.
2. Violation of principles of natural justice due to lack of opportunity for cross-examination.
3. Allegation of bogus purchases without considering documentary evidence.
4. Addition of entire alleged bogus purchase amount without restricting to profit element.

Issue 1: Allegation of Non-Genuine Purchases
The Assessing Officer (AO) received information from the Sales Tax Department regarding alleged bogus purchase bills obtained by the assessee from entry providers. The AO found that the transactions lacked proper documentation like transportation bills and delivery challans. Despite issuing notices and recording statements, the parties failed to respond adequately. Consequently, the AO concluded that the purchases were unsubstantiated and aimed at inflating the assessee's income by ?36,73,217. This led to the addition of the same amount to the disclosed income.

Issue 2: Violation of Principles of Natural Justice
The appellant contended that the AO erred in not providing an opportunity for cross-examination regarding the alleged bogus purchases. The appellant highlighted the lack of independent and reliable evidence supporting the AO's claims. The failure to allow cross-examination was argued to be a violation of natural justice principles, affecting the fairness of the assessment process.

Issue 3: Allegation of Bogus Purchases Ignoring Documentary Evidence
During the appellate proceedings, it was noted that the Gross Profit (GP) rate had decreased compared to previous years, indicating a suppression of income. The CIT(A) found that the suppressed GP amount exceeded the alleged bogus purchase amount. The CIT(A) sustained the disallowance made by the AO based on the suppressed GP calculations and the appellant's inability to explain the significant GP variance.

Issue 4: Addition of Entire Alleged Bogus Purchase Amount
The AO's decision to add the entire alleged bogus purchase amount without considering the profit element embedded in the transactions was challenged. The Tribunal referred to legal precedents emphasizing that only the profit element should be added to the income, not the entire purchase price. Citing relevant cases, the Tribunal directed the AO to estimate the profit at 12.5% on the disputed purchases and bring ?4,59,150 to tax instead of the initial addition of ?36,73,217.

In conclusion, the Tribunal partially allowed the appeal, setting aside the CIT(A)'s order and directing the AO to tax the estimated profit on the disputed purchases. The judgment highlighted the importance of considering profit elements in alleged bogus purchases and ensuring adherence to principles of natural justice during assessments.

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