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TMI Blog2012 (11) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Income-tax (Appeals),XII, Kol in Appeal No.611/CIT(A)-XII/42(2)/08-09 dated 14-01-2011 for the assessment year 2006-07. 2. As both the appeals of revenue and assessee involve identical issues, the same are disposed of by this common order for the sake of convenience. 3. Shri L.K.S Dahiya, ld.CIT/DR represented on behalf of the revenue and Shri Somnath Ghosh, Advocate, ld.AR represented on behalf of the assessee. ITA No.558/Kol/2011 A.Y 2006-07 (by the revenue) 4. In this revenue's appeal, the revenue has raised following grounds of appeal:- 1. That on the facts and circumstances of the case, the CIT(A) had erred in restricting the disallowance of Rs.1,03,69,099/- in place of Rs.1,61,12,500/- on account of sundry creditors/p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of: i. Shanker Industries Vs. CIT(1978) 114 ITR 689(Cal); ii. CIT vs. United Commercial & Industrial Co.(P) Ltd.(1991) 187 ITR 596(CaI); iii. CIT vs. Precision Finance (P) Ltd.(1994) 208 ITR 465,470 (Cal); iv. C. Kant & Co. Vs. CIT (1980) 126 ITR 63(Cal) 5. That the Ld.CIT(A) failed in law and on the facts and circumstances of the case to appreciate that even in the one creditor's case out of the five without any relevant supporting documents like PAN etc mere production of a confirmation letter is not sufficient to prove the genuineness of the credit u/s.68 of the I T Act as held in Jalan Timbers Vs. CIT(1997') 223 ITR 11. (Gau' 6. That the Ld.CIT(A) failed in law and on the facts and circumstances of the case in not enhancing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was the submission in the case of Nahar Nursery and Gupta Seeds Corporation no reply was also received. When, this was informed to the assessee, the assessee filed Xerox copies of purchase bills and two confirmatory letters in the name of Naha Nursery and Gupta Seeds Corporation. Such confirmatory letters were without PAN Nos or documentary evidences. As the assessee was unable to substantiate the claim of sundry creditors, the entire sundry creditors of Rs.1,61,12,500/- was treated as unexplained cash credit u/s. 68 of the Act. 6. It was the submission on appeal before the learned Commissioner of Income-tax(Appeals), a fresh explanation was placed, which has been explained by the learned Commissioner of Incometax (Appeals) in para 5 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals) had accepted the purchases in so far as when he disallowed 25% of purchases as unverifiable and purchases stood accepted. It was the submissions that the learned Commissioner of Income-tax (Appeals) ought not have rejected the books of account, just because the sundry creditors were not verifiable. It was the submissions that the transactions between sundry creditors were early in 2006 and by the time the assessment in the case of assessee was taken up, the sundry creditors might have changed their addresses. It was the submissions that all the bills in respect of purchases have been produced before the Assessing Officer/learned Commissioner of Income-tax (Appeals). It was the further submissions that the total quantity of purchases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax (Appeals) XII, Kolkata misread facts, considered improper issues, failed to consider proper position in law, misplaced onus of proof and came to erroneous findings thereupon in upholding the impugned addition to the extent of Rs. 1,03,69,099/- made by the IA. Income Tax Officer, Ward 42(2), Kolkata on merits. 10. It was the submissions by the learned AR for the assessee that the same argument against the revenue's appeal in ITA No.558/Kol/2011 would apply to this appeal [ITA No.620/Kol/2011 by the assessee] also. It was the submission that the addition as confirmed by the learned Commissioner of Income-tax (Appeals) was liable to be deleted. 11. In reply, the learned DR has reiterated the same submissions in respect of the departmental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of books of account by the learned Commissioner of Income-tax (Appeals) u/s.145 is on right footing and does not call for any interference. The revenue has also not been able to dislodge the reasons given by the learned Commissioner of Income-tax(Appeals) for rejection of books of account, which has resulted in estimation of addition @ 25% of the total purchases. 13. True, the Assessing Officer has made the addition of sundry creditors, but the sundry creditors are, in fact, the trade creditors of the assessee on account of purchases made by the assessee, which the assessee is unable to substantiate with the proof. In the circumstances, the finding of the learned Commissioner of Income-tax (Appeals) is liable to be upheld and we do so. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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