2022 (6) TMI 665 - AT - Income Tax

Penalty u/s 271(1)(c) - estimation of income on Disallowance of bogus purchases - HELD THAT - We find that the Hon ble ITAT, SMC Bench in 2019 (9) TMI 1648 - ITAT MUMBAI have dealt with similar issue, more so particularly, in assessee s own case and had ruled that when sales are not in doubt, then 100% disallowance for bogus purchases cannot be made and relied on Hon ble jurisdictional High Court in Nikunj Eximp Enterprises Pvt Ltd. 2013 (1) TMI 88 - BOMBAY HIGH COURT and Principal Commissioner of Income-tax vs M. Haji Adam Co 2019 (2) TMI 1632 - BOMBAY HIGH COURT We do not find any infirmity in aforementioned decision and thereby set aside the matter to the Assessing Officer with the direction to restrict the addition on gross profit rate of bogus purchases at the same rate as that of the genuine purchases after giving opportunity to the assessee to present its case. Further, we hold that levy of interest under section 234B and 234C are consequential and initiation of penalty under section 271(1(c) is premature.

Summary

Issues:
1. Reopening of assessment under section 147 and addition of Rs.22,00,556/- on account of possible profit element on bogus purchases.
2. Delay in filing the appeal and condonation of delay.
3. Challenge against penalty under sections 234B, 234C, and 271(1)(c) of the Act.
4. Interpretation of the principle regarding taxation of profit on bogus purchases.

Analysis:
1. The appeal challenges the reopening of assessment under section 147 and the addition of Rs.22,00,556/- on account of potential profit element from bogus purchases. The Assessing Officer reopened the assessment due to information from the sales-tax department regarding hawala bills and accommodation entries. The assessment order under section 143(3) r.w.s. 147 determined the total income at Rs.44,40,240/-, with an additional profit margin of Rs.22,00,556/- added to the income. Penalty proceedings under section 271(1)(c) were also initiated. The Ld.CIT(A) confirmed the addition, leading to the appeal before ITAT Mumbai.

2. The delay in filing the appeal was addressed through a sworn affidavit explaining the circumstances causing the delay. The Ld.AR argued that the delay was beyond the assessee's control, constituting a reasonable cause for condonation. After considering both sides, ITAT Mumbai condoned the delay, admitting the appeal for adjudication.

3. The challenge against penalty under sections 234B, 234C, and 271(1)(c) was raised. However, ITAT Mumbai held that the levy of interest under section 234B and 234C was consequential, and the initiation of penalty under section 271(1)(c) was premature based on the decision on the merits of the case.

4. The interpretation of the principle regarding taxation of profit on bogus purchases was crucial. The Ld.AR argued that only the profit from bogus purchases should be taxed, not the entire purchase amount. Referring to relevant case law, ITAT Mumbai directed the Assessing Officer to restrict the addition on the gross profit rate of bogus purchases at the same rate as genuine purchases, following the precedent set in similar cases. The legal ground challenging the reopening of the assessment was not adjudicated upon due to the decision on the merits of the case.

In conclusion, the appeal filed by the assessee was partly allowed, with the matter being set aside to the Assessing Officer for further proceedings in line with the directions provided by ITAT Mumbai.