TMI Blog2009 (6) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue, we direct the AO to sustain the addition of Rs. 5 lacs. Therefore, the assessee gets the part relief ll the transactions were made by account payee cheque including interest payment and therefore, there can be no adverse view regarding the cash creditor. The confirmation in respect of transaction under consideration has already been submitted. - Addition can not be made Interest – Section 234B and 234D is mandatory and consequential in nature - Appeal is partly allowed and partly dismissed - - - - - Dated:- 26-6-2009 - Member(s) : I. C. SUDHIR., B. P. JAIN. ORDER-B.P. JAIN, A.M.: Both these appeals are the cross-appeals filed against the order of the learned CIT(A), dt. 26th Aug., 2008 for the asst. yr. 2005-06. Ground Nos. 1 and 1.1 of the assessee: The, learned CIT(A) has erred in holding the purchases from following parties as non-genuine/bogus. 1. M/s Girish Diam; 2. M/s V.C. Gems; 3. M/s Paras K. International. Ground No. 1.2 of the assessee: The AO has erred in unnecessarily placing reliance on withdrawals of the funds by the seller. Ground No. 1.3 of the assessee: The learned CIT(A) has erred in ignoring the purchases and delivery made, g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and found that no such business either in the name of M/s Abhay International or M/s Girish Diam was being done at the given addresses. From other sources, information was gathered and found that both the concerns were bogus concerns. Regarding Guman Impex, bank statement was examined and it was found that cash was withdrawn from that account after depositing the cheque of Rs. 2 lacs. The AO has not discussed anything about rest 5 suppliers. The AO however, held purchases from all the abovementioned 8 concerns as bogus relying on various case laws including CIT vs. Precision Finance (P) Ltd. (1994) 121 CTR (Cal) 20 : (1994) 208 ITR 465 (Cal), Kanchwala Gems vs. Jt. CIT (ITD No. 134, Tribunal, Jaipur), Indian Woollen Carpet Factory vs. ITAT Ors. (2002) 178 CTR (Raj) 420, Chuharmal vs. CIT (1988) 70 CTR (SC) 88 : (1988) 172 ITR 250 (SC) and CIT vs. Golcha Properties (P) Ltd. (In Liquidation) (1996) 136 CTR (Ra)) 222 : (1997) 227 ITR 391 (Raj). In these case laws, it was held that onus was on the assessee to prove the purchases. The genuineness of transaction could be decided on the basis of primary facts on record and in the present case primary facts are against the assessee. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses, there is no material with the AO to reject the books of account. Except M/s Girish Diam, names of other concerns do not appear in the bogus entry cases. The contention of the learned Authorised Representative is that M/s Abhay Trading Co. is a very well reputed company and M/s Guman Impex is also sister concern of M/s Abhay Trading Co. Shri Abhay Chordia is the proprietor of M/s Abhay Trading Corporation and Shri Guman Mal Chordia is the director in M/s Guman Impex and both are famous jewelers of Jaipur. At the most the purchases from M/s Girish Diam, V.C. Gems and Paras K. international only can be held as bogus or unverified. The AO has not discussed anything about these concerns as well as M/s R.A. Gems and M/s G.G. Enterprises and M/s G.L. Gems. No summons under s. 131 of the Act were issued to any of the parties and no enquiries were made at least in six cases. This is true that the assessee by not producing these parties has failed to discharge its onus but at the same time, it is also apparent from the record that the assessee asked the AO to issue summons under s. 131 of the Act to these parties after submitting all the required details of these parties. However, the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f these cash credit entries. 4. The brief facts of the case are that the AO asked the assessee to file confirmation in respect of 21 creditors. However, the confirmations of only two creditors namely Yogita Jain and Kamal Kishore Kastia were filed. Out of this list, 5 were old creditors. The confirmation in respect of other creditors, the sum appearing credited in the books of account of the assessee was treated as deemed income under s. 68 and further interest paid to them during the year was also disallowed. Thus addition of Rs. 72,91,000 plus interest of Rs. 3,52,765 was made. 5. The learned CIT(A) deleted the entire addition on the basis of evidence filed in support of the said creditors. 6. We have heard the rival contentions and perused the facts of the case. The assessee filed the confirmations in the form of additional evidence. The said confirmations were forwarded to the AO for verification. It was submitted by the assessee that the amounts were received through account payee cheques and necessary TDS was also deducted and paid the interest and all the cash creditors are assessed to tax. It is only at the fag end of the assessment proceedings, the confirmations were ..... X X X X Extracts X X X X X X X X Extracts X X X X
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