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TMI Blog2013 (10) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... irst common ground is to challenge the legality and validity of the order passed u/s. 143(3) r.w.s. 147 of the Act. 3. The common ground raised by the department in their appeals for the assessment years 2002-03 to 2007-08. ITA No.4012 to 4015/M/12 and ITA Nos.4020 to 4021/M/2012 are interlinked and directly related to outcome of the second ground in Assessee's appeal which we will see herein after. 4. The first common ground in Assessee's appeal reads as under :- "On the facts and circumstances of the case and in law, the ld. CIT(A) erred in confirming the reopening of assessment u/s. 147 of the Act as valid merely on general statement of Shri Rakeshkumar Gupta that was made by him in the course of survey u/s. 133A at his premises. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition on the peak value of cash involved in making purchase from the so called unidentifiable parties u/s. 69." The department has also raised an additional ground in their appeals for assessment years 2002-03 to 2007-08 which reads as under: "On the facts and in the circumstances of the case, the ld. CIT(A) after having accepted the fact that the purchase made from or through Shri Rakeshkumar Gupta and his family members are bogus, erred in law in not confirming the addition at least to the extent of peak of the purchases made from such parties on account of bogus purchases made in cash from the open market out of unaccounted cash in view of the decision held in Ahmedabad Hon'ble ITAT's C-Bench decision decided in the case of Vijay Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of his peers in respect of some other parties who have also made purchases from the concerns of Shri Rakeshkumar Gupta and his family members and taking a clue from the orders of his peers he sustained the addition to the extent of 10% and deleted the remaining addition made by AO. The Counsel for the Assessee submitted before us that one of the orders considered by the CIT(A) while disposing the appeal was in the case of M/s. Jeetendra Harshadkumar Textiles. The Counsel further submitted that in that case the Tribunal had the occasion to consider the validity or otherwise of the addition made on the basis of the very same statement of Shri Rakeshkumar Gupta which has been relied upon by AO in the case of the Assessee under consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03 & 2007-08. As you are aware that my assessing officer had recorded alleged statement u/s. 133A and 131 of the I.T.Act. 1961 1 have been receiving witness summons from all four corners of the city on the ground that I have given accommodation bill, though I have denied the content of the statements recorded by A.O. u/s. 133A & 131 vide my letter dated 27.4.2009 and my affidavit dated 20.2.2009 submitted to ward 14(3)(2). It is physically impossible for me to attend before various income tax authorities, as I am not feeling well, it will not possible for me to attend before your goodseif in response to your above mentioned summons. As regards M/s. Jitendra Harshad Kumar Textiles Pvt. Ltd. is concerned. I have already given my affidavit w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained by Ld. CIT(A) is also on presumption basis. Therefore, keeping in view the facts and circumstances of the case, we are of the opinion that additions made by the AO deserves to be deleted in its entirety. We decide accordingly." 7.1 On identical facts, and issues, this Bench has decided the appeal in the case of M/s. C. Chotalal & Co. in ITA Nos. ITA No.3960 to 3967/Mum/2012 for Assessment years 2002-03 to 2009-10 dated 24/09/13 wherein one of us (the Accountant Member) is a party to the said decision. Since the facts and issues being identical, we have no hesitation in following the order of our co-ordinate Bench. Respectfully following the same all the appeals filed by the Assessee are partly allowed and all the appeals filed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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