TMI Blog2021 (8) TMI 1193X X X X Extracts X X X X X X X X Extracts X X X X ..... venue necessitating estimated disallowance claim of the appellant, cannot be denied. The AO is directed to delete the disallowance - Decided in favour of assessee. - ITA NOs. 1947 & 4899/MUM/2019 - - - Dated:- 3-8-2021 - Shri C.N. Prasad, Hon'ble Judicial Member And Shri M. Balaganesh, Hon'ble Accountant Member For the Assessee : Shri Hari Raheja For the Department : Ms. Shreekala Pardeshi ORDER PER C.N. PRASAD (JM) 1. These appeals are filed by the revenue against different orders of the Learned Commissioner of Income Tax (Appeals) 38, Mumbai [hereinafter in short Ld.CIT(A) ] dated 15.10.2018 and 30.01.2019 for the A.Y. 2011-12 and 2010-11 respectively, in deleting the addition/disallowance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the assessee might have made purchases in the gray market. Assessing Officer observed that the notices issued u/s. 133(6) of the Act to the parties are returned unserved with a remark unserved/unclaimed and the assessee has not produced the parties before the Assessing Officer. Circle Inspector was deputed to serve the notice u/s. 133(6) of the Act and the inspector in his inquiries found that the parties do not exist on the address furnished by the assessee. It is the finding of the Assessing Officer that the assessee failed to produce the parties in support of its claim that purchases are genuinely made from the parties. Therefore, Assessing Officer treated 25% of the alleged bogus purchases of ₹.66,51,301/- and ₹.1,45,86 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by the appellant can neither be disbelieved nor can be held to be non-genuine. Further it is also facts of the case that the appellant is engaged in the business of undertaking turnkey projects for BARC and Indian Navy. In this regard, as proof, the Ld. AR submitted photocopy of order dated 15.02.2007 received by the appellant from Government of India, Department of Atomic Energy and Tax Invoice No.43 dated 29.09.2009 for ₹ 2,12,62,500/- accompanied by delivery challan No.44 to evidence that the goods were supplied by the appellant to the aforesaid government organization. Further, it is submitted that on successful completion of the said order, the appellant received another order dated 05.01.2009 from the Defence Machinery Desig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eyes of law. 7.3.4 It is observed that the Sales Tax Department had disallowed the claim of input tax credit in hands of the purchaser, and the Hon'ble High court of Bombay in the case of M/s. Mahalaxmi Cotton Ginning Pressing Industries (51 VST 1) has directed the authorities to pursue recoveries against the defaulting selling dealers. The appellant has further contended that the above parties had defaulted in not paying VAT to the government treasury which does not mean that the purchases from these parties were bogus, since the parties could have given false statements to save themselves from the action of the Sales Tax Department. I find that the AO cannot make any addition just on the basis of presumptions. Suspicion, howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found to have been made by crossed cheques duly recorded in the books of accounts. (c) The sales corresponding to such purchases have been found recorded in the books of accounts and it is so because Revenue has not doubted the genuineness of the sales, rather accepted the same. (d) There is no allegation of suppression of value of the closing stock or of the sales quantity wise or value wise there is no allegation of inflation of purchases also. In view of these facts, the appeal of the assessee was allowed. The above order of Tribunal has been confirmed by Gujarat High Court vide Tax appeal no. 1344 of 2008 with Tax appeal no, 1355 of 2008. 7.3.8 In the case of Rajesh P. Soni vs. ACIT (2006) 100 TTJ 892 (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 308(Del.)(Trib.) the assessee while furnishing necessary information regarding the transactions and the aforesaid parties like purchase bills issued against goods purchased, Sales- tax registration numbers of the parties, PANs, their confirmations and Bank statements showing the debit of the amount paid through Account payee Cheques to them in the account of assessee and credited in the Bank Account of sellers, had discharged its primary onus, thereafter the onus shifted on the department to rebut the same. Addition under section 69C was held to be not justified. 7.3.11 Apart from the above, I have also gone through the other judicial pronouncements referred by the AR and analyzed the underlying principles in allowing the claim of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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