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TMI Blog2016 (7) TMI 1237X X X X Extracts X X X X X X X X Extracts X X X X ..... arties overlooking the fact that the entire purchases were bogus specially when the Ld.CIT(A) has himself held that the genuineness of the purchases has been upheld and that the assessee failed to prove the genuineness of the transactions are nongenuine. 2. Whether on the facts and in the circumstances of the case and in law, Ld. CIT(A) was justified in overlooking the fact that the assessee failed to prove that the purchases were actually made from the above three parties, the said fictitious purchases were booked by the assessee in its P&L account in the name of the said parties and the source of alleged actual purchases if any had not been entered in the books of accounts and therefore, 100% of the bogus purchases disallowed ought to have been upheld. 3. The appellant craves leave to add amend alter or delete any ground of appeal. 4. The order of the CIT(A) may be vacated and that of the Assessing Officer may be restored. 2. The brief facts of the case are that the assessee-company, who is engaged in the business cloth merchant, filed its return of income for relevant AY on 29.10.2005 declaring total income of Rs. 2,75,830/-. The assessment was completed u/s 143(3) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd ld Departmental Representative (DR) for Revenue and perused the material available on record. AR of the assessee argued that all purchases of assessee were genuine and the payments were made through banking transaction. During the reassessment proceeding, the AO issued notice to those parties. In response to the notice of the AO, all the parties submitted their reply dated 21.01.2013; the parties also furnished the photocopies of their reply to the assessee. The assessee further filed the photocopies of purchased bills, ledger accounts showing the transaction. The bank statement depicting the payment against the purchases through cross account payee cheque. The AO was relying upon the statement of Shri Rakesh Kumar M. Gupta, Prop. Of M/s Manoj Mills recorded u/s 131 on 23.02.2009 by ITO ward 14(3), Mumbai, wherein he allegedly admitted that no transaction of purchase and sale had been made by him and only accommodation bills had been provided. In the order, the AO reproduced the statement of Shri Rakesh Kumar M. Gupta. In the said statement it is not mentioned that accommodation bills were provided to the assessee. Ld AR further argued that Shri Rakesh Kumar M. Gupta was not wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng before us. While framing the assessment, AO inferred that certain parties were found to be nonegenuine as they were providing only accommodation bills, the AO raised suspicion about the purchases from M/s Manoj Mills for Rs. 32,27,804/-, M/s Astha Silk Industries for Rs. 27,02,082/- and M/s Shree Ram Sales & Synthetics for Rs. 20,38,898/-. The notices were issued to the parties, the parties filed their reply but no documents to substantiate their sales were filed. As no documentary evidence was enclosed to prove the transaction. The AO relied upon the statement of Mr. Rakesh Kumar Gupta which was recorded u/s 131 during the survey proceedings. The assessee was show-caused as to why these parties should not be treated as nongenuine. The assessee submitted his reply and contended that proprietor of all three concern have filed their reply, wherein they have already stated that the transaction are genuine and further contended that Mr. Rakesh Kumar Gupta has given affidavit that no accommodation bills were provided to the assessee. Rakesh Kumar Gupta further gave in writing that due to his ill health, he is not in a position to travel and attend the proceeding personally and any f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he entire additions of bogus purchases. Further, the Coordinate Bench of this Tribunal in Pramit Textiles vs. ITO (supra) held as under:- "7. We have perused the assessment order and the order of CIT(A). We have also perused the order of the Tribunal Mumbai "I" Bench in the case of M/s. Jeetendra Harshadkumar Textiles in ITA No.771 and 2211/Mum/2011 for assessment year 2007- 08 dated 21/11/2012. We find force in the contentions of the counsel that the facts and circumstances are identical though the figures may differ. The Tribunal had given its finding at para-8 on page-5 of its order which reads as under :- "8. We have 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 the Revenue are accordingly dismissed. As we have seen that the Co-ordinate Bench of this Tribunal in the cases referred above has categorically noted that Mr. Rakesh Kumar Gupta when confronted with his statement has categorically rebutted his statement in course of cross-examination (though not appeared in the present case). And the Co-ordinate Bench of this Tribunal in all cases deleted the addition which was based on the statement of Mr. Rakesh Kumar Gupta. We have also noticed that proprietors of M/s Astha Silk Industries & M/s Shree Ram Sales & Synthetics also filed their affidavit about the sale and purchase of goods. The AO ..... X X X X Extracts X X X X X X X X Extracts X X X X
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