TMI Blog2020 (4) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the revenue are dismissed. - I.T.A. No. 6478/Mum/2018 - - - Dated:- 5-2-2020 - Shri Pawan Singh, JM And Shri S. Rifaur Rahman, AM For the Appellant : Shri V. Vinod Kumar, DR For the Respondent : None ORDER PER S. RIFAUR RAHMAN, ACCOUNTANT MEMBER: The present Appeal has been filed by the revenue against the order of Ld. Commissioner of Income Tax (Appeals) 34 in short referred as Ld. CIT(A) , Mumbai, dated 28.08.18 for Assessment Year (in short AY) 2012-13. 2. At the outset, it is noticed that none appeared on behalf of assessee in spite of calls and even no application for adjournment was moved. On the other hand, Ld. DR is present in the court and is ready with arguments. Therefore, we have decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een evident by the Purchase invoice, correspondence sales invoice, stock register and Bank statement showing payment made. All these documents are already been submitted during the assessment procedure. 2. We have not paid or receive any cash against the said purchase transaction and you have not provided any corroborative evidence to prove that we have paid / received any cash against such purchase transaction. 3. Further M/s Marc Gems (Prop. Lavapal R Singh) is assessed to Income Tax vide PAN CVEPS0399P and also regular in filling the return of income. 4. The relevant Purchase Transaction is reflected in the books of M/s Marc Gems as well our books and books of accounts of both the concerns are audited without any qualifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lpa Homes (P) Ltd. This cannot be acted upon. The Circular No. 286/2/2003/IT(Inv.), dated 10-03-2003 clearly refrains the Assessing Officer from recording confessional statement during the course of search and seizure and survey operations and also warns the Assessing Officer not to attempt to obtain any confessional statement as to the undisclosed income, and any action contrary shall be viewed adversely. It also states that the Assessing Officer should rely upon the evidence and material gathered during the course of search. Here in the present case, the evidence is only agreement which reflects the purchase consideration of 22 acres at ₹ 3,62,18,000/. The third party statement and unsigned agreement cannot be acted upon , b) C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncorrect . 4. After making detail verification, AO disallowed the purchases made from the alleged parties to the extent of ₹ 1,25,97,090/-. 5. Aggrieved with the above order, assessee preferred appeal before Ld. CIT(A) and assessee made a detail submission. Ld. CIT(A) after considering the submission of assessee, observed that AO has scrutinized the purchase invoices as well as sales invoices and AO noted that the purchase invoices were very silent on the type of item, only polished and cut diamond was mentioned against the description. Therefore, purchase invoices are not shown anything about the cut, colour, clarity, shape of diamond. In this type of business, the 4 c s are relevant i.e. cut, colour, clarity and carat weight ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in law, the id. CIT(A) is correct in restricting the disallowance @ 3% of bogus purchases against 100% made by AO ignoring the latest decision of the Supreme Court in the case of M/s. N K Proteins Ltd. Vs. CIT No. 769 of 2017 dated 06.01.2017 (SC) wherein the Hon'ble Supreme Court has decided the issue of bogus purchases with a direction of making addition amounting to entire bogus purchase as assesee's income. 2) Whether on the facts and in the circumstances of the case and in law, the Ld CIT(A) failed to appreciate the fact that onus is on the assesses to explain and substantiate the genuineness and true nature of purchases transactions 3) The appellant prays that the order of the CIT(A) on the above grounds be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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