TMI Blog2019 (11) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... date of search. Nothing on record would suggest that any of such statement was ever retracted by any one of them subsequently and therefore, these statements, in our considered opinion, had substantial evidentiary value and the onus was squarely on assessee to prove that the transactions were genuine. No such onus was ever discharged by the assessee. Assessee failed to produce books of accounts and file requisite documentary evidences at the time of search proceedings, assessment proceedings as well as during appellate proceedings and merely harped on the point that no incriminating material was found in the search proceedings. The incriminating material was always to be seen with reference to the books of account being maintained by the assessee and the books of accounts were never produced. The findings of AO that few bank accounts were not even reflected in the financial statement, would also assume importance, in this regard. Director of the assessee company, in statement u/s 132(4), sought time to furnish requisite information / documentary evidences to prove the genuineness of the transactions but failed to produce the same also could not refute the allegations that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Hon ble Bombay High Court rendered in CIT V/s Continental Warehousing Corporation (Nhava Sheva) Ltd. 58 Taxmann.com 78 ignoring the fact that incriminating statement justifying additions for the year under consideration were recorded during search proceedings and the additions were made on the basis of incriminating statements and therefore, the reliance on the said decision was mis-placed. Our attention has been drawn to the assessment order to fortify the said submissions. The Ld. AR submitted that the impugned order would not require any interference. 3.1 Facts on record would reveal that the assessee being resident corporate assessee stated to be engaged in the business of manufacturing of crystal items and chemicals, was assessed for year under consideration u/s 143(3) r.w.s. 153A of the Act on 21/03/2013 wherein the assessee was saddled with aggregate quantum additions of ₹ 503.12 Lacs as tabulated on page-60 of the quantum assessment order. The additions were made on three counts-(i)Addition on account of alleged bogus purchases; (ii) Addition on account of unexplained share premium; (iii) Addition on account of unexplained loans. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing search operations were confronted to the assessee and the assessee was show-caused to prove the genuineness, identity, creditworthiness and capacity to handle such large volume of transactions in view of the statement given by Shri Dilip Jayantilal Shah. 3.6 The details of purchases made by assessee for various AYs has been tabulated on page no.9 of the quantum assessment order. The total purchases made for the year under consideration amounted to ₹ 38.61 Lacs out of which purchases under doubt were ₹ 35.84 Lacs. 3.7 During search operations, it transpired that another entity namely M/s Sai Consultancy Services Pvt. Ltd., was being owned, controlled and managed by Shri Rajendra G. Parekh though proxy / dummy employees namely i.e. Shri Vicky Oswal and Shri Nilesh Pichule. The dummy directors had apparently no means to operate entity of such a magnitude. In his statement, Shri Vicky Oswal admitted that the said entity was created only with a view to manipulate the transactions of the assessee company. Similar statements were recorded from Shri Hemandra Choksi, director of another entity namely M/s Swiss Brain Systems ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er: - 7.4 I have considered the submissions of the AR. In para 5.1 of the Remand Report dated 12.11.2014, the AO failed to rebut the claim of the appellant that there is no seizure of any incriminating document relating to the A.Y.2008-09 and that assessment for the A.Y. 2008-09 had attained finality before the date of the search. Therefore, the appellant's case is squarely covered by the decision of the Hon ble jurisdictional Bombay High Court in case of Commissioner of Income-tax-II, Thane v Continental Warehousing Corporation (Nhava Sheva) Ltd, Bharati Vidyapeeth Medical Foundation cited above. In that case, the Hon ble High Court has held that no additions can be made for unabated assessments which have achieved finality and for which no incriminating material has been found in the course of the search conducted u/s 132 of the Act. 7.5 In view of the decision of the Hon'ble jurisdictional Bombay High Court cited above, I hold that the AO erred in making additions which are not based on any seized material. Accordingly, I direct the AO to delete the additions which are subject matter of grounds no.5,6,7,8,9 10. In the result, the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us bills from various suppliers. Therefore, we are unable to subscribe to the approach adopted by learned first appellate authority. Hence, on the facts and circumstances of the case, we deem it fit to setaside the order of learned first appellate authority and restore the matter back to Ld. CIT(A) for appreciation of factual matrix in the light of investigation being carried out by Ld. AO and re-adjudicate the same in accordance with law. The assessee, in turn, is directed to substantiate its claim that no additions would be warranted for the year under consideration. Needless to add that adequate opportunity of being heard shall be granted to the assessee. 8. The Ld. AR has placed on record the decision of Tribunal in assessee s own case for AY 2006-07, ITA No.7456/Mum/2016 dated 07/02/2019, in support of his arguments. However, upon perusal, we find the facts of AY 2006-07 are distinguishable since no addition on account of bogus purchases was made in that year and the additions, whatever made, were not based on any incriminating material. The same is also clear from the table extracted by Ld. AO at para 60 of the quantum assessment order. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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