TMI Blog2016 (7) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner (Appeals), suffers from any legal infirmity so as to give rise to a question of law, much less, a substantial question of law, warranting interference. - Decided against revenue. - Tax Appeal No. 288, 289 of 2016 - - - Dated:- 4-4-2016 - Harsha Devani And G. R. Udhwani, JJ. For the Appellant : Mr Sudhir M Mehta, Sr. Standing Counsel ORDER ( Per : Honourable Ms. Justice Harsha Devani ) 1. Both these appeals arise out of a common order dated 29th September, 2015 passed by the Income Tax Appellate Tribunal, D Bench, Ahmedabad (hereinafter referred to as the Tribunal ) and hence, the same were heard together and are disposed of by this common order. 2. The appellant-revenue has challenged the above referred or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessing Officer issued notices under section 133(6) to several parties for verifying the purchases. Ultimately, the Assessing Officer found that the assessee had not discharged the onus of proving the transactions in respect of purchases to the extent of ₹ 36,88,350/- and ₹ 8,90,055/- for assessment years 2007- 08 and 2008-09 respectively, and held these transactions to be non-genuine. He, therefore, disallowed 10% of the purchase amount on the basis of estimate. 4. The assessee carried the matter in appeals before the Commissioner of Income Tax (Appeals). In relation to assessment year 2007-08, the Commissioner (Appeals) found that during the year, the book results of the assessee for the year under consideration were be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner (Appeals) and dismissed the appeal. 6. Mr. Sudhir Mehta, learned Senior Standing Counsel for the appellant, assailed the impugned orders by reiterating the findings recorded by the Assessing Officer. It was submitted that the assessee had failed to produce the parties or furnish their addresses or whereabouts. Thus, the evidence produced by the assessee was not reliable. It was pointed out that the Assessing Officer had found that the sales in terms of the exports had been effected by the assessee and hence it must have purchased goods for export, but since such goods might have been purchased from unverifiable source, the Assessing Officer was of the view that the actual purchase price might be lower than that shown by the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly, was of the view that the purchases made by the assessee are not genuine. The Assessing Officer, however, found that the sales in terms of exports had been effected and was therefore, of the view that the assessee must have purchased the goods for export, but that it was not clear as to from which parties the assessee had purchased goods. He, accordingly, came to the conclusion that the actual purchase expenses must be much lower than that claimed by the assessee and was of the opinion that it would be fair and reasonable to disallow 10% of the purchases treating the same as not verifiable. Thus, while disallowing 10% of the purchases, the Assessing Officer has not adopted any specific basis but has merely adopted an ad-hoc basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er (Appeals) has deemed it proper to reduce the disallowance to 2% after considering the gross profit rate and net profit rate. In either case, the disallowance is based on an estimate. While there is no basis for the estimate adopted by the Assessing Officer, there is some basis in the estimate adopted by the Commissioner (Appeals). Under the circumstances, it cannot be said that the impugned order passed by the Tribunal whereby it has upheld the order passed by the Commissioner (Appeals), suffers from any legal infirmity so as to give rise to a question of law, much less, a substantial question of law, warranting interference. 11. Insofar as the reliance placed upon a decision of this court in the case of Vijay Proteins Ltd. (supra) is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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