9911796707
TMI Blog2013 (9) TMI 1109X X X X Extracts X X X X X X X X Extracts X X X X ..... eal as well as Revenue's appeal are same. 2. In all the appeals filed by the Assessee for assessment years from 2002-03 to 2009-10 bearing No.3960 to 3967/M/2012 the first 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 2009-10 except in assessment year 2005-06 in ITA No.4022 to 4024/M/12 and ITA Nos.4025,3944, 3995 and 5065/M/2012 is 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter having accepted the finding in principle that there was involvement of cash to have purchase made from undisclosed/unverifiable parties and purchases from the concerns of Shri Rakesh Gupta and family was only accommodation entries and not by actual purchase. 2. The ld. CIT(A) erred in law as well as fact by not sustaining any 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 2008-09 (except for assessment year 2005-06 for which year there is no departmental appeal presumably due to tax effect) which reads as under: "On the facts and in the circumstances of the case, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods. The Assessing Officer discarded all these evidences filed by the Assessee relying upon the statement of Shri Rakeshkumar Gupta and went on to make an addition on account of entire amount of purchases made from Shri Rakeshkumar Gupta and his family members. The Assessee carried the matter before the CIT(A) and reiterated what had been submitted before AO. After considering the facts and statement made by assessee, the CIT(A) relied upon the decision 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 Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e carefully considered the rival submissions in the light of material placed before us. It will be relevant to reproduce the letter received by the AO from Shri Rakesh Kumar Gupta, which is also reproduced in the assessment order: "1 am in receipt of your summons u/s. 131 of the I.T.Act. 1961 in the case of M/s. Jitendra Harshad Kumar Textile Pvt. Ltd. asking me to attend before your goodself with the details of my account with the said M/s. Jitendra Harshad Kumar Textile Pvt. Ltd. for A.Y.2002-03 & 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 bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upta, which was later on retracted. In absence of any material brought on record against the submissions made by Shri Rakesh Kumar Gupta in his letter dated 20/12/2009 filed before the AO of the assessee the addition, if any, made in the case of the assessee will be based on presumption only and it cannot be sustained in the eyes of law. As against that assessee has submitted various evidences to show that the actual delivery of the goods was received by the assessee from the said party which has not been discarded by the AO. The addition sustained 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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