2017 (12) TMI 1264 - AT - Income Tax

Tribunal upholds AO's adjustments on bogus purchases, directs re-computation and verification.

The Tribunal confirmed the AO's additions treating certain purchases as bogus, directing a 15% addition to the total amount. The Tribunal upheld the ... Bogus purchases - profit rate determination - Held that:- We uphold addition in the instant case by directing the AO to re-compute income after applying profit rate @ 5% of the bogus purchases to the tune of ₹ 8.45 crores and appeal of the assessee is partly allowed. We would like to clarify that the claim of the assessee for payment of additional VAT and interest on these alleged bogus hawala purchases from twelve dealers shall be verified by the AO as the said claim is set up for the first time before the tribunal and also since we have factored the additional VAT and interest etc. paid by the assessee on such alleged hawala purchases while estimating income on the said alleged hawala purchases by applying profit rate @5% of the alleged bogus purchases of ₹ 8.45 crores for the impugned assessment year, the deduction on account of additional VAT, interest etc paid by the assessee on these alleged bogus purchases cannot be availed once again in the year of determination of the additional liability by Maharashtra VAT authorities or in the year of payment thereof by the assessee as the case may be, as otherwise it will lead to double deduction. See Nikhil Kishore Gandhi case [2017 (12) TMI 1278 - ITAT MUMBAI]. The assessee gets part relief. Issues Involved:1. Confirmation of additions made by the AO treating purchases as bogus.2. Rejection of books of account by the AO.Issue-wise Detailed Analysis:1. Confirmation of Additions Made by the AO Treating Purchases as Bogus:The primary issue in this case revolves around the confirmation of additions made by the Assessing Officer (AO) treating certain purchases as bogus. The AO received information from the Sales Tax Department and DGIT (Inv), Mumbai, indicating that the assessee had accepted bogus purchase bills from hawala dealers. The investigation revealed that these dealers provided bogus bills without supplying any material. The AO issued notices under section 133(6) to these parties, which were returned un-served, and the assessee could not produce these parties. Consequently, the AO concluded that the assessee purchased goods from the grey market at lower prices and obtained higher-priced invoices from these dealers, leading to an addition of 15% of the total amount of bogus purchases, amounting to Rs. 1,26,83,094/-.The assessee argued that the purchases were genuine, supported by payments made via account payee cheques, and that the stock reconciliation statement was duly submitted. The assessee also highlighted that they were compelled to pay additional VAT due to the default of these dealers, which reduced their profits. The Tribunal considered the factual matrix and upheld the addition by directing the AO to re-compute income after applying a profit rate of 5% of the bogus purchases, in line with a similar case (Nikhil Kishore Gandhi v. ACIT). The Tribunal also clarified that the additional VAT and interest paid by the assessee should be verified by the AO, and no double deduction should be allowed.2. Rejection of Books of Account by the AO:The AO rejected the books of accounts under section 145(3) of the Income Tax Act, citing deficiencies and unverifiable purchases. The CIT(A) confirmed this rejection, stating that the AO was justified in rejecting the books as they were found unreliable, incorrect, or incomplete. The Tribunal also upheld this decision, noting that the AO had pointed out apparent deficiencies and had not mechanically disallowed the entire purchases but rather estimated a profit rate which should have arisen from the bogus purchases.In conclusion, the Tribunal partly allowed the appeal, directing the AO to apply a profit rate of 5% on the bogus purchases and verify the additional VAT and interest paid by the assessee, ensuring no double deduction occurs. The rejection of the books of accounts by the AO was also upheld.