TMI Blog2020 (1) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Kabul Chawla [ 2015 (9) TMI 80 - DELHI HIGH COURT] and Meeta Gutgutia [ 2017 (5) TMI 1224 - DELHI HIGH COURT] . Accordingly, additions made by the Assessing Officer are held to be beyond the scope of Section 153A and same are deleted - Decided in favour of assessee - I.T.As. No.6066, 6067/DEL/2016, I.T.A. No.6068/DEL/2016 - - - Dated:- 23-1-2020 - Shri Amit Shukla, Judicial Member And Shri O.P. Kant Accountant Member For the Appellant : Shri J.K. Mishra, CIT-DR For the Respondent : Shri Ved Jain Ms. Umang Uppal, Adv. ORDER PER AMIT SHUKLA, J.M.: The aforesaid appeals have been filed by the Revenue against the common order dated 28.09.2016 passed by Ld. CIT(A)-XXIII, New Delhi. 2. At the outset, ld. counsel for the assessee submitted that in so far as appeals for the Assessment Years 2012-13 and 2014-15 are concern, the tax effect in both the appeals are below prescribed monetary limit of ₹ 50 lac in view of CBDT Circular No.17/2019 dated 08.08.2019. He has filed a separate tax calculation wherein the tax on disputed amount for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with following documentary evidences like confirmation of account; income tax return, VAT return, bank statement in pen drive. Ld. CIT (A) in so far as validity of the addition within the scope of assessment u/s.153A has observed that same was not pressed. Accordingly, the same was dismissed by the Ld. CIT (A). However, on merits the Ld. CIT(A) has deleted the said addition after observing and holding as under: 4.4 Ground No.08 in Assessment Years 2011-12 2012- 13 of M/s. Jakson Ltd. and Assessment Year 2012-13 of M/s. Jakson Engineers Ltd. and Ground no.4 of Assessment Year 2014-15 of M/s. Jakson Ltd. relate to addition on account of bogus purchases from M/s. New Jain Spares. The facts of the matter are matter are that the AO, vide questionnaire u/s 142(1) of the Act dt. 12.10.2015, asked the appellant to submit confirmation from persons from whom purchases above ₹ 10,00,000/- were made and the AO simultaneously issued letters u/s 133(6) of the Act to these persons and thereafter vide his letter dt. 23.02.2016 the AO asked the appellant to produce some of the 39 parties from whom replies were not received, but in the assessment order the AO has not list ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant or payment against the purchases from NJS and there is no adverse material brought on record except for the non-receipt of reply from NJS. The appellant has otherwise argued that when the notices u/s 133(6) and 131 of the Act were duly served only because NJS did not submit reply to the AO it cannot be concluded that NJS was non-existent at the given address and that the purchases from them were bogus for which the Ld. AR has relied upon various judgments including that of the Hon ble Supreme Court in CIT Vs. Orissa Corpn. 159 ITR 78 (SC). I am inclined to agree with the appellant s AR on this account. 4.4.2 It is pertinent to know that the appellants are engaged in the business of manufacturing Electrical DG Sets for which they are purchasing various raw material and spare parts from different persons. The appellant has purchased pump for C/N/K Series and B Series, EOT Crane, VCB Panel, NGR Panel, HT Transformer, Heat Oven, Air Compressor, Grinder, MLG/ARC Welding Machine, Hydraulic Pallet, Instlaterial-N material and various other items as per the invoices of NJS filed with PBs which are utilized by the appellant in the manufacturing and assembly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 Only addition u/s 14A 2007-08 431.55 2.31 Addition on account of 14A and disallowance u/s 80IB on account of scrap sale. 2008-09 465.15 1.18 Same as AY 2007-08 2009-10 473.97 1.56 Only addition u/s 14A 2010-11 581.77 2.05 Only addition u/s 14A It is observed that the appellant have been regularly purchasing material from NJS in the preceding years, payments have been made to banking channels and even the outstanding payment of preceding year was paid in the succeeding year, and since AY 2004-05 till AY2010-11 the purchases from NJS had been accepted in the assessments made u/s 153A/143( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ld. CIT (A) on legal ground if the entire basis of the addition is either without jurisdiction or beyond the scope of provision of the Act. Thus being a legal issue, we do not find any fetter that same cannot be entertained before the Tribunal even if the said ground has not been pressed especially when the said issue does not require any investigation of facts and is clearly borne out from the records and the findings given in the impugned order. Accordingly, we hold that assessee is not precluded from raising the legal issue before us. Admittedly and from the bare perusal of the assessment order, it is seen that addition on account of bogus purchases is not based on any evidence or incriminating material found during the course of search and seizure action albeit same has been made on the basis of information already on record in the form of audited balance sheet and books of account. It is also an admitted position that at the time of search, i.e., on 30.10.2013, the assessment for the Assessment Year 2012-13 has attained finality and was not pending assessment. Therefore, in terms of second proviso to Section 153A it cannot be reckoned as abated assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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