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TMI Blog2018 (4) TMI 1892X X X X Extracts X X X X X X X X Extracts X X X X ..... statements are relied on by the AO to make the addition, inspite of the specific prayer made by the appellant. (2) That on facts in law, the learned CIT(A) has grievously erred in confirming the addition of Rs. 1,41,28,605/- made on account of alleged bogus purchases. (3) That on facts, evidence on record and in law, the learned CIT (A) ought to have deleted the entire addition, as prayed for. (4) That on facts in law, the learned CIT (A) has grievously erred in confirming the levy of interest u/s. 234B and 234C of the Act. 3. Ground no. 1 to 3 are interconnected and relates to addition of Rs. 1,41,28,605 made on account of bogus purchases, hence, these are being considered together. 4. Succinctly, facts as culled out from the orders of lower authorities are that the assessee is a partnership firm and had filed return of income on 30.10.2007 declaring total income of Rs. 4,68,690. Subsequent to this, there was a search and seizure operation carried out on 03.10.2013 in the case of Shri Rajendra Jain Group, Sanjay Choudhary Group and Dharam Chand Jain Group of Mumbai, which revealed that the said Group had provided accommodation entries to various parties in respect of bogus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1987] 163 ITR 249 (Guj) submitted that it was held that there was no evidence anywhere that those concerns give bogus vouchers to the assessee and further there was nothing to indicate that any part of fund given by the assessee to those parties came back to the assessee in any form. In such circumstances, it was held that the evidence was not adequate to conclude that purchases were bogus and therefore, the addition deleted by the Tribunal was upheld. In the case of the assessee also, there is no evidence to show that the assessee has given any fund to seller, which has came back to the assessee in any form. Without prejudice to above, the learned counsel for the assessee further submitted that admittedly the assessee has provided all books of accounts, cash book, bank statement sales except no cash sales and payment were made by account payee cheques. No case of the AO that cash received by the assessee. The assessee filed confirmation PB-64-65. The assessee has also furnished PAN number of supplier and his confirmation. The learned counsel for the assessee relied on the decision in the case of Sejal Export (India) v. DCIT I.T.A. No. 3859/M/2017 dtd. 27.09.2017 in which bog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not acceptable. The AO has examined the matter as discussed in the assessment order. The ld. Sr. DR relied on the decision of Co-ordinate Bench in the case of Vijay Proteins 55 TTJ 76 (Ahd-Trib) and submitted it is fact that seller party is not traceable, hence, purchases needs to be held as bogus and entire addition be upheld as sustained by the CIT (A). 8. We have heard the rival submissions and perused the relevant material on record. We find that the assessee has made purchases of Rs. 1,41,28,605 from M/s. Mayank Impex proprietor concern of Shri Sanjay Chaudhary, HUF. The assessee has failed to produce the said party for verification to prove the genuineness of purchases. Shri Sanjay Chaudhary has admitted in his statement recorded under section 132(4) of the Act during the course of search and seizure operation conducted in their case that they used to provide bogus accommodation bills. However, the copies of his statement was not made available to the assessee during the course of assessment proceedings nor any cross-examination was allowed. Therefore, the violation of not allowing cross examination to the assessee as held in the case of CIT v. M/s. Ashish Internation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. In view of these facts, the said case was distinguishable. The tribunal therefore, restricted the disallowance to 12.5%. No such adverse facts are present in the present case. In view of above facts, we are of the view that facts N. K Proteins Ltd. v. DCIT [Tax Appeal No.242/2003 dated 20.06.2016 as upheld in SLP (C ) CC No.963/2017 dtd. 16.01.2017 Guj. High Court] are not applicable to present facts of the case. The book results of the assessee are in line with book results of earlier years. The books of accounts are audited under section 44AB of the Act and no adverse comments pointed out by the auditors. Quantity records are maintained. There is no evidence that cash received back except statement of Shri Sanjay Chaudhary, which is general in nature and same was also not made available to the assessee. The case laws of Karamchand Nathmal Lunia (supra) relied by the AO is not applicable to the assessee case as that case was of LTCG transaction made out of Stock Exchange and payments were made in cash. However, there is no corroborating evidences that bills from the impugned party were as per market value and purchase cost represent fair market value. 9. We further no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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