TMI Blog2016 (7) TMI 1237X X X X Extracts X X X X X X X X Extracts X X X X ..... rves to be deleted. Hence, this Ground of appeal raised by the assessee is allowed. - ITA No.5297/Mum/2014 - - - Dated:- 27-7-2016 - SHRI B.R.BASKARAN, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER For The Assessee : Shri Subodh Ratnaparkhi (AR) For The Revenue : Shri Nitin Waghmode (Sr. DR) ORDER PER PAWAN SINGH, JM: 1. These two cross appeal are filed by assessee and Revenue against the order of CIT(A)-I, Thane dated 27.06.2014 for AY 2005-06. The assessee has raised the following Grounds of Appeal: 1. The ld. CIT(A)-1 Thane has partly allowed the appeal instead of allowing in full. 2. He has confirmed the addition of ₹ 19,92,196/-out of the addition done by the AO of ₹ 79,68,784/-. Which is against the principals of law. The Revenue in their Cross Appeal ITA No.5817/M/2014 has raised the following Grounds of Appeal: 1. Whether on the facts and in the circumstances of the case and in law, the ld. CIT(A) was justified in restricting the addition to 25% of ₹ 79,68,784/- made on account of bogus purchases from 03 parties overlooking the fact that the entire purchases were bogus specially when the Ld.CIT(A) h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 M/s Manoj Mills ₹ 32,27,804/- 2 M/s Astha Silk Industries ₹ 27,02,082/- 3 M/s Shree Ram Sales Synthetics ₹ 20,38,898/- Total ₹ 79,68,784/- The AO issued notices u/s 133(6) to the above three parties. The notice was replied by all three parties and wherein it was stated that they have made sales to the assessee. The AO observed that those seller have not enclosed any documentary evidence to prove the genuineness of the transaction, thus, aggregate of sale transaction of three parties was disallowed and added back to the total income of assessee in assessment order u/s 143(3) r.w.s. 147 of the Act. Aggrieved by the order of AO, the assessee filed the present appeal before the CIT(A). The Ld. CIT(A) after hearing the contention of the assessee restricted the addition to 25% of the aggregate purchase, thus partly allowed the appeal of the assessee its order dated 27.06.2004. Further aggrieved by the order of CIT(A) sustaining the addition to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of all parties were also submitted to the AO. AR of the assessee further argued that Ld. CIT (A) restricted the addition to 25% of the purchases without any basis and the same are liable to be deleted. AR of the assessee relied upon the various decision of this Tribunal in M/s Neeta Textiles vs. ITO , ITA No. 6138/Mum/13 dt. 27.05.15, M/s Jitendra Harshadkumar Textiles vs. ITO in ITA No. 771/Mum/11 dt. 21.11.12, M/s C. Chotalal Co. vs. ITO in ITA Nos. 3960 to 3967/Mum/12 dt. 24.09.2013, M/s Permit Textiles vs. ITO in ITA Nos. 3948 to 3953/Mum/12 dt. 01.10.13 DCIT vs. Smt. Neena M. Lekhi in ITA No. 1608/Mum/13 dt. 14.01.2015. DR for Revenue argued that the assessee was not maintaining stock register and there was no proof of delivery of goods and further relied upon the statement of Mr. Rakesh Kumar Gupta recorded by ITO ward 14(3) u/s131 of the Act. Ld DR for Revenue further argued that when notice u/s133(6) was issued to those parties, they did failed to enclosed any documentary evidences in their support and strongly supported the order of AO and prayed that order of AO be restored and that order passed by ld. CIT(A) for restricting the addition to 25% may be quashed. 4. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... genuine/bogus purchases and restricted it to 25% of the impugned purchases. The Ld. CIT(A) has not given any reason for restricting the purchases to 25% of impugned purchases. We have noticed that neither the AO nor the CIT(A) disputed that the payments for purchases were made by cross cheques which are duly reflected in the bank statement nor any discrepancy was noticed by AO. The AO and the CIT(A) not disputed the sale of the assessee, the AO has not brought any material on record, which may suggest that the payment made to purchase of goods were again received in cash by assessee. The statements of Bank accounts of parties were not examined. Section 69C provides that if the explanation offered by the assessee about the source of expenditure is not found satisfactory by the AO, the amount may be added to his income. The AO has not recorded the satisfaction that the purchases made by assessee are not genuine. The AO merely relied upon the statement of Mr. Rakesh Kumar Gupta. Mr. Rakesh Kumar Gupta has not referred the name of assessee while making such statement. The assessee has relied upon the decision of M/s Neeta Textiles vs. ITO (supra) wherein similar impugned purchases were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.1 From the above letter it is clear that the same was written in response to notice issued by the AO. Not only Shri Rakesh Kumar Gupta has stated that he has retracted from the statement recorded during the survey but also filed an affidavit dated 20/2/2009 and letter dated 27/4/2009 to deny the statement made during the survey under section 133A. He has further confirmed that the sales made by the assessee were effected and the consideration was received by cross order cheques. Thus it is clear that there is no material on record to say that the purchases made by the assessee from the said concern were bogus except the general statement recorded by the Department in the case of Shri Rakesh Kumar Gupta, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
