2019 (3) TMI 1079 - AT - Income Tax

Appeal partially allowed, 25% bogus purchases upheld. Grounds on motor expenses, depreciation dismissed. Decision on 07/01/2019.

The Tribunal partly allowed the appeal by sustaining the addition at 25% of the bogus purchases, minus the declared gross profit. The grounds related to ... Bogus purchases u/s 69C - scrutiny assessment - assessee explained that only profit element can be added against the addition made by the AO - HELD THAT:- The assessee is engaged in the business of construction and development work. The case of the assessee was selected for scrutiny, therefore, notice u/s 143(2) and thereafter notice u/s 142(1) were issued to the assessee. The assessee filed the copies of audit report, profit and loss account and balance sheet etc. Admittedly, there cannot be any development work/construction work without using the material, therefore, in such type of cases, the profit element can be added. At the same time, it was the duty of the assessee to prove consumption. Thus, considering the totality of facts, we deem it appropriate to sustain the addition @ 25% (minus the GP already declared by the assessee) of such bogus purchases as against the total addition made by the ld. Assessing Officer. Thus, the appeal of the assessee is partly allowed. Issues Involved:1. Disallowance of bogus purchases amounting to Rs. 15,75,231.2. Disallowance of motor expenses of Rs. 17,775.3. Disallowance of depreciation of Rs. 19,509.4. Disallowance of office and conveyance expenses of Rs. 26,280.Issue-wise Detailed Analysis:1. Disallowance of bogus purchases amounting to Rs. 15,75,231:The primary issue argued by the counsel for the assessee was the disallowance of Rs. 15,75,231 on account of bogus purchases. The assessee, a builder/developer, contended that without using the material, there cannot be any development, and thus only the profit element should be added. The counsel for the assessee also highlighted that the assessee had already declared a gross profit of 12.98% and a net profit of 12.20%. In contrast, the Revenue's representative argued that the addition made by the Assessing Officer and sustained by the Commissioner of Income Tax (Appeal) was justified.The Tribunal referred to several judicial precedents to reach a fair conclusion. The Hon'ble Gujarat High Court in Sanjay Oilcakes Industries vs. CIT (2009) 316 ITR 274 (Guj.) held that the apparent sellers were not traceable and acted as conduits between the assessee and the actual sellers, leading to the likelihood of inflated purchase prices. Similarly, in CIT vs Bholanath Poly Fab. Pvt. Ltd. (2013) 355 ITR 290 (Guj.), the court concluded that the purchases might have been made from bogus parties, but the purchases themselves were not bogus, and only the profit margin embedded in such amount should be taxed.The Tribunal also cited the Hon'ble Gujarat High Court in CIT vs Vijay M. Mistry Construction Ltd. (2013) 355 ITR 498 (Guj.), which emphasized that some degree of guesswork is inevitable in cases where income estimation is warranted. The Hon'ble jurisdictional High Court in CIT vs Ashish International Ltd. (ITA No.4299/2009) and CIT vs M.K. Brothers (163 ITR 249) also supported the view that without concrete evidence, the entire amount should not be disallowed.Considering the totality of facts, the Tribunal deemed it appropriate to sustain the addition at 25% (minus the gross profit already declared by the assessee) of such bogus purchases as against the total addition made by the Assessing Officer. Thus, the appeal of the assessee was partly allowed.2. Disallowance of motor expenses of Rs. 17,775:During the hearing, the counsel for the assessee did not press this ground. Consequently, the Tribunal dismissed this ground as not pressed.3. Disallowance of depreciation of Rs. 19,509:Similar to the motor expenses, the counsel for the assessee did not press this ground during the hearing. Therefore, the Tribunal dismissed this ground as not pressed.4. Disallowance of office and conveyance expenses of Rs. 26,280:The counsel for the assessee also did not press this ground during the hearing. Hence, the Tribunal dismissed this ground as not pressed.Conclusion:The Tribunal partly allowed the appeal of the assessee by sustaining the addition at 25% (minus the gross profit already declared by the assessee) of the bogus purchases and dismissed the grounds related to motor expenses, depreciation, and office and conveyance expenses as not pressed. The order was pronounced in the open court in the presence of representatives from both sides at the conclusion of the hearing on 07/01/2019.