TMI Blog2020 (4) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly. - ITA No. 7164/Mum/2018, ITA No. 7165/Mum/2018, ITA No. 7166/Mum/2018 - - - Dated:- 25-2-2020 - Shri R.C. Sharma (A.M.) And Shri Pawan Singh (JM) For the Appellant : Shri Paresh Shaparia AR For the Respondent : Shri Satishchandra Rajore Sr DR ORDER PER PAWAN SINGH, JM : 1. This set of three appeals by assessee are directed against the independent orders of CIT(A)-3, Thane dated 2-11-2016, 22-06- 2016, and 15-03-2018, for assessment years 2009-10, 2010-11 and 2011-12, respectively. In all appeals, the assessee has raised identical / common grounds of appeals except for variation in figures of disallowance u/s 69C / bogus purchases. Facts in all appeals are also common, therefore, with the consent of parties, all appeals were clubbed, heard and are decided by consolidated order. For appreciation of facts, the appeal for assessment year 2009-10 is treated as lead case. In this appeal, the assessee has raised the following grounds of appeal:- I. REOPENING OF ASSESSMENT PROCEEDINGS U/S 147 BAD IN LAW 1. The assessment proceedings ought not to have been re-opened u/s 147 of the I. T. Act 1961. 2. The reopening u/s 147 is bad in law and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the genuineness of transaction. The AO recorded that no response was made by assessee. The assessee ultimately filed its reply dated 21-10-2013 and furnished party-wise details of purchases. The assessee was again served notice dated 23-12-2014 to provide the details of purchases, copy of bills and other documentary evidence to substantiate the purchases. The AO noted that no further reply was furnished by assessee. The AO disallowed the entire purchases. 4. On appeal before CIT(A), the assessee challenged the reopening of the assessment as well as the addition made on account of bogus purchases. The Ld.CIT(A) while passing the appellate order noted that assessee was given numerous opportunities. The assessee neither replied nor provided any details; only ledger accounts of the parties without supporting documentary evidences were furnished. The Ld.CIT(A) upheld the reopening as well as the addition made by AO. Thus further aggrieved, the assessee has filed present appeal before us. 5. We have heard the submission of Ld.AR of the assessee and Ld. DR for revenue and perused the material available on record. 6. Ground I relates to validity of reopening. During the argumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 M/s. Geolife Organics, Mumbai and others (Mum ITAT) (2017) 9 Sumit Jaiswal, I.T.A. No. 1541/Kol/2016 (ITAT Kolkata) (2018) 10 Vaishali Prakash Muni, I.T.A. No. 378-380/Mum/2018 (Mum ITAT) (2018) 11 M/s Steel Line (India), I.T.A. No.l321-1323/Mum/2016 (Mumbai ITAT) (2017) 12 Suman Gupta, I.T.A. No. 4774/Mum/2014 (Mum ITAT) (2017) 8. The Ld.AR further submits that only profit element of bogus purchases should be added back to the income of assessee and relied upon the following decisions:- 1. Pr.CIT vs ITO ITA No.5063/Mum/2017 (Mum ITAT0 2. CIT vs Bholanath Poly Fab (P) Ltd 40 taxmann.com 494 (Guj) 3. ACIT vs. Haware Construction (P) Ltd (2019 101 taxmann.com 168 4. Batliboi Environment Engg.Ltd vs DCIT (2017) 88 taxmann.com 645 5. Vijay Trading Co vs ITO 76 taxmann.com 366 (Guj) 6. CIT vs Simit P Sheth 38 taxmann.com 385 (Guj) 9. On the other hand, the Ld. DR for the revenue supported the orders of lower authorities. The Ld. DR submits that the assessee not pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l considerations are pitted against each other, substantial justice should prevail over the technical consideration. Therefore, considering this principle, we, instead of going into the controversy as to when the orders impugned were communicated, in absence of any evidence, we treat the submission of assessee in form 36 as prima facie, correct. 13. Now turning to the validity of addition on account of alleged bogus purchases. There is no dispute that in the re-assessment order, the AO made addition on account of bogus purchases. The AO made 100% of the alleged bogus purchases. The AO solely relied upon the report of sales-tax department without conducting any independent enquiry. The AO has neither disputed the sale nor consumption of assessee nor rejected the books of assessee. It is an admitted position under the business parlance that no sale is possible in absence of any purchases. The Ld. CIT(A) confirmed the action of AO in ex-parte order. The Ld.CIT(A) at para 3 of the order has recorded that despite granting five opportunities, neither the assessee nor his representative attended. The case was lastly listed on 21-11-2016. However, at para 4 of the impugned order, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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