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2015 (3) TMI 645 - ITAT MUMBAIDisallowance u/s 69C - @ 2% of bogus billing as unexplained expenditure - CIT(A) restricting the disallowance lowing the order of his predecessor for the earlier assessment years on the same issue - Held that:- The facts are not in dispute inasmuch as it is also not in dispute that the A.O. has accepted the purchases and sales as disclosed by the assessee and has not rejected the books of accounts as maintained by the assessee. While making the addition of undisclosed commission of ₹ 2,51,698/-, the A.O. has relied upon the statement of Mr. K.K. Gupta recorded on oath by the DDIT (Inv.) on 25-7-2007 u/s 131 of the Act. However, during the course of assessment proceedings it was stated by the assessee that at the time of statement recorded by the DDIT (Inv.) it was inter alia stated by the assessee that unless all facts with respect to the statement made by Mr. Gupta were given, proper cross examination could not be carried out and hence right to cross examination was reserved. However, during the course of assessment, the assessee has asked for the cross examination which was denied by the A.O. on the ground that the same is untenable and unacceptable. In absence of any contrary material placed on record by the Revenue to show that the cross examination of Mr. K.K. Gupta was provided to the assessee, we respectfully following the ratio of precedents of the earlier years and keeping in view that the assessee in his submissions dtd. 19-12-2008 stated that he is showing profit ranging between 40 to 45% on the purchases has not been uncontroverted by the Revenue even at this stage and also keeping in view the books of accounts have not been rejected, we are of the view that the ld. CIT(A) was not justified in sustaining the addition of commission of ₹ 2,51,698/- and accordingly we delete the same. The grounds taken by the assessee are, therefore, allowed. we uphold the order of the CIT(A) sustaining the commission payment at the rate of 0.25% instead of 2%. - Decided against revenue. Disallowance of depreciation on plant and machinery - CIT(A) deleted disallowance - Held that:- It is not the case of the Revenue that the plant and machinery were not installed at the assessee’s business premises or the same were not used for the purpose of the business of the assessee or the rate of depreciation claimed by the assessee is not according to the Rules, we are of the view that the estimated disallowance of depreciation made by the A.O. is not sustainable in law and accordingly we are inclined to uphold the findings of the ld. CIT(A) in deleting the same. Thus following the earlier years decisions, we uphold the order of the CIT(A) deleting the disallowance of depreciation - Decided against revenue.
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