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2022 (9) TMI 307 - HC - Income TaxUnexplained expenditure u/s 69C - genuineness of purchases - HELD THAT:- There is no evidence or material brought on record by the Assessing Officer that the purchases made were for cash or that the purchasers had returned the cash corresponding to the cheque payments received from the Assessee. CIT(A) has recorded that there is no evidence of money flowing back to the Assessee and that the AO had made the addition merely on the basis of presumption. AO had not made available copies of the documents relied upon by him for the purpose of making the addition. These are all findings of fact for which the Tribunal is the last fact finding authority. Assessee in our view has discharged his onus in respect of the subject purchases. AO has also not doubted the sales arising out of the said export activity and its GPR. This is not a case which falls within the ambit of Section 69C as held by the AO. In the case at hand, the Assessee statedly had made purchases from the three parties in respect of which it has been found by both the CIT(A) as well as the Tribunal that the sales in question have not been doubted, that the payments have been made by the Assessee through banking channels and that the AO has also accepted the book results shown by the Assessee. It is also finding of fact that the Assessee has produced before the AO delivery challans, purchase bills as well as evidence of payments through banking channels. Assessee has discharged the initial burden or onus of providing the details of the parties; and it was incumbent on the AO to rebut the evidence produced by the Assessee. We do not find anything on record controverting the findings of fact of the CIT(A) as well as the Tribunal. Despite uncontroverted findings of fact and keeping in mind that the AO had issued 133(6) notices to the three suppliers of goods and the parties had not attended and even though the AO did not take any further steps for investigation, in all fairness, CIT(A) as well as the Tribunal had upheld the dis-allowance in respect of the purchases for the year under consideration to the extent of 10% of such purchases against which admittedly no appeal has been filed by the Assessee. If the CIT(A) relying upon the various decisions including the decision in the case of CIT Vs. Bholenath Poly Fab (P) Ltd. [2013 (10) TMI 933 - GUJARAT HIGH COURT] has restricted the disallowance to 10% of the purchases, which decision has not been disturbed by the Tribunal, we find that The view taken by the Tribunal is a possible view and cannot be faulted with.
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