TMI Blog2017 (11) TMI 1347X X X X Extracts X X X X X X X X Extracts X X X X ..... rail. Secondly, proof of movement of goods is not a doubt. Therefore considering the peculiar facts and circumstances of the case under appeal, we are of the opinion that the order of the FAA does not suffer from any legal infirmity and there are not sufficient evidence on file to endorse the view taken by the AO - Decided in favour of assessee - ITA No.2256/M/2017 - - - Dated:- 11-10-2017 - SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER For The Assessee : Shri Satish R. Mody, A.R. For The Revenue : Shri Saurabh Deshpande, D.R. ORDER Per D.T. GARASIA, Judicial Member: The present appeal has been preferred by the Revenue against the order dated 23.01.2017 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 2009-10. 2. The following grounds are raised: 1. On the facts and in the circumstances of the case in law, the Ld. CIT(A) has erred in deciding the appeal in favour of assessee without appreciating the facts that the assessee was not able to substantiate his claim even after giving ample opportunity and also the fact those traders were treated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties as also details such as evidence for delivery of goods, proof of payment etc. The assessee produce all the details called for. During the course of assessment proceedings the assessee explained the business situation under which traders like him are forced to deal with brokers to meet the demands of the customers. The AO, therefore, disallowed 12.5% of ₹ 2,06,78,079/- which resulted into an addition of ₹ 33,34,760/-. 5. Matter carried to the Ld. CIT(A) and the Ld. CIT(A) has allowed the appeal by observing as under: 5.1 Ground no 1: The appellant is alleged to have made bogus purchases from 13 parties viz. Shree Sai Trading Co. ₹ 13,89,232/-, Rajlaxmi Metal Alloys ₹ 10,49,999/- V3 Enterpriese ₹ 24,50,130, Deep Enterprises ₹ 33,18,054/-, Nirmal Trading Co. 9,29,956/-, M/s. Prayush Steelage ₹ 24,60,152, Niddhish Impex P. Ltd. ₹ 24,44,624/-, Vatika Trading Co. ₹ 31,16.910, Skand Industries ₹ 15,49.891/- M/s. Sanyo Sales Corporation ₹ 11,50,011/-, Rohit Enterprises ₹ 17,94,978/-, Sumzo Traders P. Ltd. ₹ 34,98,670/- and Toral Enterprises ₹ 15,25,472/- totaling to ₹ 2,60,78,079/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of cost incurred towards the purchases during the course of business. It was further concluded that the assessee furnished Bank statement, challan and copy of Inward receipt and deleted the entire addition. The coordinate bench of this Tribunal Hiralal Chunnilal Jain vs. ITO-ITA No.4547/Mum/2014 dt. 01.01.2006 relying upon the decision of Hon'ble jurisdictional High Court in Nikunj Eximp Enterprises (P) Ltd. (supra), Kalathil, Tristar Jewellery held as under: 'In the case of Nikunj Eximp (supra) the Hon'ble Bombay High Court has held if safes were not doubted by the AO and copies of bank statement showing entries of payment through account payee cheques to the suppliers, copies of invoice for purchases and a stock statement, i.e. stock reconciliation statement are filed purchased could not be rejected Further the Co-ordinate Bench of ITAT, Mumbai in a case of ACIT vs. Tarla R. Shah- ITA No. 5295/M/2013 dt. 02.02.2016, relying upon the decision of Shri Ramesh Kumar Co. (supra) vs. ACIT in ITA No. 2959/M/2014 and Rajeev G. Kalathin in ITA No.6727/m/2013 held as under: 5.1 Now the issue before us is whether the aforesaid case of the assessee i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or A.Y. 2010-11, I delete the disallowance of ₹ 33,34,760/- made by the A.O. on account of bogus purchase for AY. 2009-10. The appeal is allowed. 6. In the result, the appeal is allowed. 6. The Ld. D.R. submitted that in this case the assessee has purchased from 13 parties and assessee was asked to produce the purchase bill, alleged bogus purchase payment detail, corresponding sales details and quantity detail of the stock. Assessee produced all the details. Accordingly, books of accounts are tested and verified. But some of the parties are not available for cross verification. Therefore, he has disallowed 12.5% of the total transaction of the above parties. Therefore, Ld. CIT(A) has wrongly followed the order of ITAT for A.Y. 2010-11. 7. On the other hand, the Ld. A.R. submitted that in assessee s own case for A.Y. 2010-11 wherein six parties were there and all were accepted as genuine one. The Ld. A.R. submitted that the AO accepted that maintenance of books of accounts are said to be completed and acceptable. Therefore, still he holds that parties are bogus. 8. We find that the assessee purchased from Shree Sai Trading Co. of ₹ 13,89,232/-, from V3 E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and there was no evidence of movement of goods. But, in the case before us, there is nothing, in the order of the AO, about the cash trail. Secondly, proof of movement of goods is not a doubt. Therefore considering the peculiar facts and circumstances of the case under appeal, we are of the opinion that the order of the FAA does not suffer from any legal infirmity and there are not sufficient evidence on file to endorse the view taken by the AO. So, confirming the order of the FAA, we decide ground no. 1 against the AO. Thus, keeping in view the decision of the coordinate bench of this tribunal, where the AO has not disputed the use of material nor disputed the stock of the assessee, hence we do not find any illegality or infirmity in the order of Ld CIT(A). In the result, appeal filed by the Revenue is dismissed. In view of this, the matter has attained finality now in favor of the appellant. Respectfully following the decision of the Hon'ble ITAT in the appellant's own case for A.Y. 2010-11, I delete the disallowance of ₹ 33,34,760/- made by the A.O. on account of bogus purchase for AY. 2009-10. The appeal is allowed. 6. In the result, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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