TMI Blog2017 (2) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... come back to the assessee in cash.It is also true that no adverse inference has been drawn so far as the sales made by the assessee is concerned. We also find that the entire purchases made by the assessee from M/s. Raj Impex have been accounted by Raj Impex and have paid the taxes accordingly - Decided in favour of assessee. Addition on account of estimation of oil gain - Held that:- It is true that the A.O. has made the additions taking a leaf out of the findings given in A.Y. 2004-05. Except for this, there is nothing on record which could suggest that the assessee has made oil gain during the year under consideration. In the absence of any corroborative evidence, we decline to interfere with the findings of the ld. CIT(A).- Decided in favour of assessee. - ITA. Nos. 1994, 1990 & 2095/AHD/2010 - - - Dated:- 16-1-2017 - Shri N. K. Billaiya, Accountant Member And Shri Mahavir Prasad, Judicial Member Appellant by : Shri Rashesh Shah, AR Respondent by : Shri Dharmvir D. Yadav, Sr. D.R. ORDER Per N. K. Billaiya, Accountant Member 1. ITA Nos. 1994 1990/Ahd/2010 are appeals by the assessee preferred against two separate orders of the Ld. CIT(A)-II, Surat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view that the transactions in which under valuation took place, the assessee must have invested in the purchase of yarn and reported lesser amount of investment in the purchase of said yarn. The A.O. computed the peak of unaccounted investment at ₹ 5,68,810/- which was based on Invoice No. E 2511026 of M/s. S.K. Keris and made the addition of ₹ 5,68,810/-. 8. Aggrieved by this, the assessee carried the matter before the ld. CIT(A) but without any success. 9. Before us, the ld. counsel for the assessee reiterated what has been stated before the lower authorities. Per contra, the ld. D.R. strongly supported the findings of the revenue authorities. 10. We have given a thoughtful consideration to the orders of the authorities below and have carefully perused the related documentary evidences placed before us in the form a paper book. 11. A perusal of the record shows that a preventive action was conducted by the DRI on 09.03.2007. A perusal of the assessment order shows that the Assessing Officer has based his findings totally on the basis of the show cause notice issued by the DRI. We find that the two invoices referred to by the DRI/A.O. bearing no. E-1106 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the alleged suppressed amount at USD 14,177.28. 17. The Assessing Officer has based his findings influenced by the aforementioned assumption of the DRI. There is no evidence whatsoever brought on record which could suggest that the assessee has actually paid the differential amount as calculated hereinabove. Although, a reference is made to the statement given before the DRI but no cognizance has been taken for the affidavit of the assessee by which he has retracted from the statement given before the DRI. The affidavits are exhibited at pages 33 to 36 of the paper book. 18. In our considered opinion in the absence of any documentary evidence, the impugned additions cannot be made solely based on the action of the third person that is the DRI on the allegation that the assessee has under-valued its import of PFY and has made payments by under invoicing. 19. It would be pertinent to refer to the decision of the Co-ordinate Bench in the case of ITO vs. Pukhraj N. Jain 99 TTJ (Mumbai) 364 wherein the relevant findings read as under:- .... The contention of the Departmental Representative that the Customs Collector having had conducted the inquiry and having marshalled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision is illegal and a nullity in law because it shall deemed in law that such an order/decision is not of that quasi judicial authority but some other authority who directed or issued orders/instructions to the lower authority to act and thereafter pass an order/decision in a particular manner. 21. Considering the totality of the facts, in the light of our observations mentioned hereinabove and considering the relevant observations of the Co-ordinate Bench on the points in issue, in our considered opinion, the impugned additions do not hold any water. We, accordingly, set aside the findings of the ld. CIT(A) and direct the A.O. to delete the addition of ₹ 8,18,683/- on account of G.P. addition and ₹ 5,68,610/- on account of alleged peak of unaccounted investment made in purchases. Both the grounds are allowed and in the result, the appeal filed by the Assessee is allowed. ITA No. 1990/Ahd/2010 A.Y. 2007-08 Assessee s Appeal 22. The assessee has raised two substantive grounds of appeal. Ground no. 1 relates to the addition of ₹ 6,32,055/- on account of G.P. addition and ₹ 8,15,791/- on account of alleged peak of unaccounted investment made in pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Raj Impex along with PAN details were filed. I.T. returns of M/s. Raj Impex for the year under consideration was filed along with audited statement of accounts of M/s. Raj Impex. The assessee also filed the bank statements showing payment of purchases by account payee cheques along with the copies of the bills of M/s. Raj Impex. 29. After considering the facts and the submissions, the ld. CIT(A) found that what has been disallowed are the purchases claimed to have been made by the assessee from M/s. Raj Impex. The ld. CIT(A) further found that all the payments made by the assessee were by account payee cheques to M/s. Raj Impex. The ld. CIT(A) further observed that since the assessee was a trader, therefore the purchases made from M/s. Raj Impex have been found to be sold and the sales have been accepted by the A.O. The ld. CIT(A) concluded by holding that there was no basis or evidence to treat the purchases from M/s. Raj Impex as bogus and accordingly directed the A.O. to delete the addition of ₹ 51,98,656/-. 30. Aggrieved by this, the revenue is before us. The ld. D.R. strongly supported the findings of the A.O. The ld. counsel for the assessee reiterated what has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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