2018 (4) TMI 1202 - AT - Income Tax

ITAT limits addition for alleged bogus purchases, emphasizing need for conclusive evidence

The Income Tax Appellate Tribunal (ITAT) directed the Assessing Officer (AO) to limit the addition to 2% of the alleged bogus purchases for the assessment ... Addition of 12.5% in respect of alleged bogus purchases - Held that:- Considering circumstances of the case vis-à-vis gross profit and net profit declared by the assessee during the years under consideration and cases of Geolife Organics (2017 (5) TMI 1101 - ITAT MUMBAI) and Suman Gupta [2018 (4) TMI 1217 - ITAT MUMBAI] we direct the AO to restrict the addition to the extent of 2% of such alleged bogus purchases in all the three years under consideration. - Decided partly in favour of assessee. Issues Involved:1. Addition of 12.5% in respect of alleged bogus purchases.2. Treatment of 'suspicious' or 'hawala dealers' by the MVAT and Income Tax Departments.3. Burden of proof regarding the genuineness of purchases.4. Rejection of books of accounts and acceptance of sales.5. Reliance on precedents and judicial pronouncements to support or contest the addition.Issue-wise Detailed Analysis:1. Addition of 12.5% in Respect of Alleged Bogus Purchases:The primary issue in the appeals was the upholding of an addition of 12.5% on alleged bogus purchases by the assessee for the assessment years 2009-10, 2010-11, and 2011-12. The Income Tax Department based this addition on information from the MVAT Department, which listed certain suppliers as 'suspicious' or 'hawala dealers'. The assessee argued that such dealers should be treated as 'defaulters' rather than 'bogus', and that purchases cannot be disallowed merely on suspicion. The assessee also provided documentary evidence to support the purchases and requested the Assessing Officer (AO) to summon the parties and allow cross-examination, which was not done.2. Treatment of 'Suspicious' or 'Hawala Dealers' by the MVAT and Income Tax Departments:The MVAT Department lists 'suspicious' or 'hawala dealers' on its website, which the Income Tax Department uses to disallow purchases. The assessee contended that the MVAT Department grants registration after verifying details like bank accounts, PAN, and addresses, and sometimes even conducting visits. Therefore, the dealers were in existence when the Registration Certificate was obtained. The assessee argued that the MVAT Department treats such dealers as 'suspicious' and not 'bogus', and that the Income Tax Department should follow the same approach. The AO, however, made an adhoc addition of 12.5% of the alleged bogus purchases.3. Burden of Proof Regarding the Genuineness of Purchases:The assessee argued that the burden of proving the genuineness of purchases should not solely fall on them, especially when they have provided all necessary details like names, addresses, PAN, and sales records. The AO did not provide any specific evidence from independent inquiries to substantiate the allegation of bogus purchases. The assessee also highlighted that the Income Tax Department did not treat the sales as bogus, and that the nature of their business involved back-to-back purchases and sales without taking possession of goods, which explained the lack of transportation documents.4. Rejection of Books of Accounts and Acceptance of Sales:The AO did not reject the books of accounts of the assessee, which showed gross profit margins of 3.06%, 3.90%, and 4.20% for the respective assessment years. The AO accepted the corresponding sales made by the assessee, which indicated that the purchases were genuine. The assessee provided documentary evidence to support the purchases and corresponding sales, and the AO did not bring any material on record to conclusively establish that the purchases were bogus.5. Reliance on Precedents and Judicial Pronouncements:The assessee relied on several judicial pronouncements to argue that additions cannot be made solely based on information from the Sales Tax Department without further investigation. The decisions cited included CIT v. Nikunj Eximp Enterprises (P.) Ltd., Rajesh P. Soni v. ACIT, and others, which held that if purchases are supported by documentary evidence and sales are not doubted, additions cannot be sustained merely because suppliers did not appear before the AO. The ITAT, in similar cases, had restricted additions to a lower percentage of the alleged bogus purchases.Conclusion:Considering the facts, circumstances, and judicial precedents, the ITAT directed the AO to restrict the addition to 2% of the alleged bogus purchases for all three assessment years. The appeals of the assessee were allowed in part, and the order was pronounced in the open court on 20/04/2018.