2022 (8) TMI 1019 - AT - Income Tax

Tribunal Allows Appeal, Remands Bogus Purchases Issue, Dismisses Penalty Ground

The Tribunal condoned the delay in filing the appeal due to unintentional circumstances beyond the assessee's control, remanded the issue of alleged bogus ... Estimation of Income - Bogus purchases - claim of the assessee that it has earned gross profit of 5.07% - HELD THAT:- We find that this aspect was not raised and thus, was not considered by any of the lower authorities. Even in its appeal before the learned CIT(A), the assessee did not appear despite issuance of various notices. However, during the hearing before us, learned AR gave a personal undertaking that in case the matter is remanded to the learned CIT(A) for de novo adjudication, she will appear under any circumstances. Considering the undertaking given by the learned AR and also in view of the fact that the assessee did not appear before the learned CIT(A) and apart from filing one written submission, no other details were filed before the learned CIT(A), therefore, we deem it appropriate to remand this issue to the file of learned CIT(A) for de novo adjudication after consideration of all details as may be filed by the assessee. Further, the assessee is directed to appear before the learned CIT(A) on all the dates of hearing as may be fixed without any default and file all details/ documents in support of its claim. Thus, ground no.1 raised in assessee‟s appeal is allowed for statistical purpose. Issues Involved:1. Condonation of Delay in Filing Appeal2. Addition on Alleged Bogus Purchases3. Initiation of Penalty Proceedings under Section 271(1)(c)Condonation of Delay in Filing Appeal:The appeal was delayed by 947 days. The assessee filed an application for condonation of delay, supported by an affidavit, explaining that the delay was due to negligence or oversight by their consultant. The Departmental Representative did not object to the application. The Tribunal, referencing the Supreme Court's decision in the case of Collector Land Acquisition, Anantnag Vs. MST Katiji and others, found that the delay was unintentional and due to circumstances beyond the control of the assessee. Thus, the Tribunal condoned the delay and decided to hear the appeal on merits.Addition on Alleged Bogus Purchases:The assessee, engaged in trading ferrous and non-ferrous metals, was alleged to have made non-genuine purchases based on information from the Sales Tax Department. The Assessing Officer (AO) added 12.5% of the total transaction amount to the income of the assessee, citing a lack of supporting documents like lorry receipts and transportation details.On appeal, the CIT(A) upheld the AO's decision, noting that the assessee failed to provide sufficient evidence to verify the purchases. The CIT(A) referenced several judicial pronouncements, including the case of CIT v. Nikunj Eximp Enterprises (P) Ltd., which held that purchases could not be disallowed merely because suppliers did not appear before the AO. The CIT(A) concluded that while the purchases could not be entirely bogus, they were not verifiable, and thus, the profit element embedded in such purchases should be taxed. The CIT(A) upheld the AO's estimation of a 12.5% profit element on the alleged bogus purchases.During the hearing before the Tribunal, the assessee argued that any addition should be restricted to the gross profit earned, which was 5.07%. The Tribunal found that this aspect was not considered by the lower authorities and decided to remand the issue back to the CIT(A) for de novo adjudication, directing the assessee to appear and provide all necessary details.Initiation of Penalty Proceedings under Section 271(1)(c):The Tribunal found the issue of initiation of penalty proceedings to be premature and dismissed this ground of appeal.Conclusion:The Tribunal condoned the delay in filing the appeal, remanded the issue of bogus purchases back to the CIT(A) for fresh adjudication, and dismissed the ground related to penalty proceedings as premature. The appeal was partly allowed for statistical purposes.