2019 (3) TMI 796 - AT - Income Tax

Bogus purchases - purchase from the grey market - 100% disallowance for bogus purchase - Adverse inference has been drawn by the A.O. on the investigation wing action on Gautam Jain group - Borrowed knowledge - CIT(A) deleted addition and disallowed 3% on the total purchases - task force group for diamond industry constituted by the Government of India, Ministry of Commerce and Industry, after considering the BAP scheme, recommended presumptive tax for net profit calculated @2% of trading activity and @3% for manufacturing activity or @ 2.5% across the board - HELD THAT - No independent enquiry has been conducted by the A.O. himself. We find that in this case the sales have not been doubted. It is settled law that when sales are not doubted, 100% disallowance for bogus purchase cannot be done. The rationale being no sales is possible without actual purchases. This proposition is supported in the case of Nikunj Eximp Enterprises 2014 (7) TMI 559 - BOMBAY HIGH COURT has upheld 100% allowance for the purchases said to be bogus when sales are not doubted. However, in that case all the supplies were to the government agency. In the present case, the facts of the case indicate that assessee has made purchase from the grey market. Making purchases through the grey market gives the assessee savings on account of non-payment of tax and others at the expense of the exchequer. In such situation, 3% disallowance out of the bogus purchases meets the end of justice, as reasoned by the ld. CIT(A) above. - Decided against revenue

Summary

Issues:
1. Whether the CIT(A) erred in not considering the Supreme Court order on similar issue of bogus purchases?
2. Whether the CIT(A) was justified in restricting profit estimation to 3% instead of 100% of non-genuine purchases?
3. Whether the CIT(A) correctly confirmed the addition of only 3% profit on non-genuine purchases?
4. Whether the AO was correct in adding the entire amount of non-genuine purchases to the total income?

Analysis:

Issue 1:
The appeal by the Revenue challenged the CIT(A)'s order regarding non-genuine purchases. The Revenue contended that the CIT(A) did not consider the Supreme Court's order on a similar issue. The Revenue argued that the CIT(A) should have taken into account the Supreme Court's decision, which was already the law of the land when the CIT(A) made his decision. The appeal raised concerns about the correctness of the CIT(A)'s decision in light of the Supreme Court's ruling.

Issue 2:
The CIT(A) directed the AO to restrict the estimation of profit to 3% instead of 100% of the total non-genuine purchases. The CIT(A) acknowledged that the purchases were non-genuine but disagreed with the AO's approach of adding the entire amount to the income. The CIT(A) reasoned that estimating the profit percentage on such purchases was the correct method to determine the taxable income. The CIT(A) considered various factors such as the difference in prices between grey market and regular dealers to arrive at the 3% profit estimation.

Issue 3:
The CIT(A) confirmed the addition of only 3% profit on the non-genuine purchases based on the premise that the assessee might have bought the goods from the grey market. The CIT(A) analyzed the situation where the purchases were doubted but the sales were not, leading to the conclusion that a 3% disallowance out of the bogus purchases would meet the ends of justice. The CIT(A) referred to relevant case laws and industry practices to support the decision to restrict the addition to 3% profit.

Issue 4:
The AO treated the total purchases from a specific party as non-genuine and added the entire amount to the total income of the assessee. The CIT(A) disagreed with this approach and emphasized that no sales could occur without actual purchases. The Tribunal noted that the assessee provided documentary evidence for the purchases and highlighted that the sales were not in question. The Tribunal agreed with the CIT(A)'s reasoning that a 3% disallowance out of the bogus purchases was appropriate in this case, considering the nature of the purchases from the grey market.

In conclusion, the Tribunal dismissed the Revenue's appeal, upholding the CIT(A)'s decision to restrict the addition to 3% profit on the non-genuine purchases. The judgment considered legal precedents, industry practices, and the specific circumstances of the case to arrive at a fair and just decision regarding the treatment of the non-genuine purchases in the assessment.