In case of disputed purchases, only profit element embedded in the value of such disputed purchases shall be brought to tax

M/s. Ashinihi
702, Satyaprasad CHSL
Plot No.192,
Dixit Cross Road
Vile Parle East
Mumbai- 400 057
PAN/GIR No. AAGFA0866N

Vs.

ITO Ward 19(1)(2)
219, 2nd Matru Mandir
Mumbai – 400 007
 

O R D E R

PER M. BALAGANESH (A.M):

1. At the outset, there is a delay in filing of appeal by the assessee by 33 days. Considering the reasons stated in the affidavit for the condonation of delay, we are inclined to condone the delay of 33 days and admit the appeal for adjudication.  

2.The ground Nos. 1 & 2 raised by the assessee were stated to be not pressed by the ld. AR at the time of hearing. The same is reckoned as a statement made from Bar and accordingly, the ground Nos. 1 & 2 raised by the assessee are dismissed as not pressed.

3. The ground No.3 raised by the assessee is challenging the disallowance made on account of non-genuine purchases in the sum of Rs. 90,31,869/-.

4. We have heard rival submissions and perused the materials available on record. We find that assessee is a partnership firm engaged in the business of manufacturing and export of cut and polished diamonds. The return of income for the A.Y.2007-08 was originally filed by the assessee firm on 26/10/2007 declaring total income of Rs.8,87,580/- which was duly processed u/s.143(1) of the Act and scrutiny assessment was completed u/s.143(3) of the Act on 11/12/2009 determining total income at Rs.9,03,840/-. This assessment was sought to be reopened by issuance of notice u/s.148 of the Act after recording the reasons for reopening with the prior approval of ld. Commissioner of Income Tax, Range-16, Mumbai. In the re-assessment proceedings, the ld. AO observed that pursuant to the search and seizure action conducted in the case of Banwarlal Jain and his group on 03/10/2013, it was established that group concerns of the group are all paper companies /firms / proprietorship concerns with no real business activities and which are operating solely with the purpose of facilitation of fraudulent financial transactions which includes, among others, providing of accommodation entries in the form of unsecured loans to interested parties, issuing of bogus sale bills to various parties and providing the bogus front of concerns which do not want to import diamonds in their own hands / books of accounts.

5. We find that assessee had provided the details of corresponding sales made out of the disputed purchases, which has not been doubted by the Revenue in the instant case. Hence, it would be just and fair to bring to tax only the profit element embedded in the value of such disputed purchases. It could be safely concluded that assessee could have made purchases from the grey market in order to have some savings in the indirect taxes and incidental profit element thereon for making purchases in cash. We find that based on the report of the task group for diamond sector published by the Government of India, Ministry of Commerce and Industry, in this regard, wherein the benign / presumptive taxation threshold was set at 2.5%, we hold that profit percentage embedded in the value of disputed purchases estimated at 3% thereon, would meet the ends of justice. Hence, in these peculiar facts and circumstances of the instant case, we deem it fit to fix the profit percentage at 3% as agreed by the ld. AR at the time of hearing. We find that ld. DR placed reliance on the Co-ordinate Bench decision of Delhi Tribunal in the case of DCIT vs Smt Phoolwati Devi reported in 122 TTJ 502 (Delhi). We find that this was the case of an addition made u/s 68 of the Act wherein the addition was sustained in the light of surrounding circumstances and applying test of human probabilities, which was rendered in the peculiar facts of that case. In our considered opinion, the same cannot be applied universally. Each decision need to be looked into in the light of facts and circumstances prevailing in the case.

6. Per contra, the ld. AR placed reliance on the Co-ordinate Bench of Mumbai Tribunal in the case of Rosy Blue India Pvt Ltd vs DCIT in ITA No. ITA No.40/Mum/2020 M1724/Mum/2019 for A.Y. 2014-15 dated 16.2.2021 wherein under similar facts and circumstances, the profit percentage was fixed at 3%. The ld AR also placed reliance on the decision of Mumbai Tribunal in the case of M/s Sejal Gems Pvt Ltd vs DCIT in ITA No. 3872/Mum/2017 dated 22.3.2019 wherein under similar facts and circumstances, this tribunal had restricted the profit element at 2% of value of purchases. But since assessee in the instant case had already accepted for adoption of 3% as profit percentage, respectfully following the aforesaid decisions of Mumbai Tribunal, we hold that profit element embedded in the value of disputed purchases that needs to be brought to tax in the instant case should be 3%. Accordingly, the grounds raised by the assessee are partly allowed.

7.In the result, appeal of the assessee is partly allowed. Order pronounced on 23/07/2021 by way of proper mentioning in the notice board.

Please find attached the enclosed file for the full judgement