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2019 (6) TMI 394 - AT - Income TaxAddition of bogus purchases - Survey action u/s133A - CIT-A restricted addition to 10% - HELD THAT:- Undoubtedly, the primary onus to prove genuineness of purchase transactions is on the assessee and he should have in first place furnished cogent evidences to prove the genuineness of the purchases and suppliers. No confirmations were filed by the assessee from suppliers. We also observe that at the time of assessment proceedings, the AO has also not exercised his power to summon the Vendors u/s. 133(6). If the assessee had failed to produce Vendors, the AO could have summoned them. There was lack of effort from both the sides to bring the true colour of purchase transaction to fore. The CIT (A) after considering entire facts came to the conclusion that it is a case of purchases from gray market and thereafter, bills have been procured from hawala operators. In the given facts, the entire purchases cannot be considered as bogus. At the same time, the assessee cannot be allowed to go scot free for not proving the genuineness of the purchases. The Co-ordinate Bench of the Tribunal in the case of M/s. Chhabi Electricals Pvt. Ltd. Vs. DCIT [2017 (6) TMI 514 - ITAT PUNE] has held that in the cases of purchases from suspicious dealers, addition of 10% of the bogus purchases over and above the GP declared by the assessee for the year should be made. In the instant case, the CIT (A) has restricted the addition to 10% of the alleged bogus purchases. Hence, the impugned order is modified; the addition is restricted to 10% of alleged bogus purchases over and above the GP declared by the assessee. - Decided partly in favour of assessee. Penalty u/s 271(1)(c) - defective notice - furnishing inaccurate particulars of income - HELD THAT:- A perusal of the order levying penalty dated 22.07.2015 reveals that though penalty was initiated for ‘furnishing inaccurate particulars of income’, the Assessing Officer invoked the other limb of section 271(1)(c) while levying penalty i.e. ‘concealment of income’. The manner in which penalty has been levied by the AO u/s.271(1)(c) clearly shows that there was ambiguity in the mind of Assessing Officer with regard to charge u/s.271(1)(c) that is to be invoked for levy of penalty. It is a well settle law that penalty cannot be levied on the charge other than the charge for which it was initiated. SHRI SAMSON PERINCHERY [2017 (1) TMI 1292 - BOMBAY HIGH COURT] - Decided in favour of assessee.
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