9911796707
TMI Blog2019 (2) TMI 1829X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax (Appeal) erred in upholding Reopening of assessment u/s. 148 of the Income Tax Act made without any tangible material, only on the basis of information received from DIT. 2) The learned Commissioner of Income Tax (Appeal) erred in confirming the assessment Order passed U/s 143(3) r.w.s 147 without issuance of valid Notice u/s.143(2). 3) The learned Commissioner of Income Tax (Appeal) erred in confirming the Additions made in the Assessment Order u/s.143(3) r.w.s. 147 without appreciating that the said additions were made on the basis of certain documents and statements recorded by DIT without the knowledge of Assessee and without granting the copies of those documents or opportunity to cross examine and therefore the same is bad in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny appeal. Taking the above facts and circumstances and the admission of the Ld. AR of the assessee, the Assessing Officer made addition @12.5 of the purchases made from the said party treating the said purchases as non-genuine. On appeal Ld. CIT(A) sustained the disallowance. 6. Before us, Ld. Counsel for the assessee submitted that assessee has furnished all the information in respect of the purchases made, even the notice issued u/s. 133(6) of the Act by the Assessing Officer was served on the party and the party has replied confirming the purchases and therefore purchases made from the said parties are genuine and no part of such purchases can be treated as non-genuine. 7. Ld. DR submitted that assessee has accepted for disallowance @ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. While deciding penalty issued the Bombay High Court had an occasion to observe in the case of Westeren Automobile(India) Ltd., 112 ITR No. 1048, that where the assessee has agreed to inclusion of amount, onus shifts on to the assessee to show that the amount was not the concealed income. Similar view was also taken by Delhi High Court in the case of Durga Timber Works, 79 ITR 63 wherein the court has observed that is would amount to laying an impossible burden of proof on department and making provisions for imposition of penalty wholly unworkable, if even after admission by assessee that certain amount could be treated as its income, the department has still to prove by independent evidences that the assessee had concealed its income. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner in accepting the concession which was made by the Department before him. In these circumstances, the preliminary contentions, which were raised on behalf of the assessee before the Tribunal, were entitled to succeed and the Tribunal should have held in favour of the assessee that the appeal of the Department in respect of the deletion of the said item was neither competent nor capable of being entertained by the Tribunal." 12. Mr. Thakkar, learned counsel for the assessee, relied upon the judgment of the Punjab and Haryana High Court in Chhat Mull Aggarwal v. CIT [1979] 116 ITR 694, 696. The court was called upon to decide, inter alia, this question : "Whether, on the facts and in the circumstances of the case, the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be held as a matter of law that no appeal was competent. It was no doubt true that in a case where the admission of the assessee had been wrongly recorded in the assessment order, it was open to the assessee to file a petition for rectification; but if the order was appealable, it was equally open to the assessee to avail of the remedy of appeal and the appellate authority would have to decide the appeal on merits. Nor was it necessary for the assessee to file an affidavit in support of his submissions in all cases. The assessee might choose to file an affidavit in support of his submissions and, if he chose not to file it, the circumstances appearing on the file had to be judged in the light of the material available and if there we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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