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TMI Blog2021 (12) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... 9-10) 2. Assessee has raised following grounds in this appeal: - "1. The Ld. CIT(A) has erred in law and in facts in confirming the action of the assessing officer in issuing notice u/s 148 of the Act and re-opening of the assessment u/s. 147 of the Act which is invalid and bad in law. 2. The Ld. CIT(A) has erred in law and in facts confirming the order of the assessing officer without complying with principles of natural justice. 3. The Ld. CIT(A) has erred in law and in facts confirming the disallowance of alleged bogus purchases of Rs. 3,88,719/- being 12.5% of Rs. 31,09,750/-in the hands of the appellant. 4. The appellant craves leave to add to, alter, amend and/or delete in all the foregoing grounds of appeal." 3. Briefly s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransportation of materials and 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 "not found" and the assessee has not produced the parties before the Assessing Officer. It is the finding of the Assessing Officer that assessee failed to produce the parties and as such the Books of Accounts remained unverifiable. Therefore, Assessing Officer treated purchases of Rs. 13,12,474/-from Anand Deep Metal and Rs. 1797276/- from Navratan Impex totaling to Rs. 31,09,750/- as non-genuine. However, following the decision of the Hon'ble Gujarat High Court in the case of CIT v. Simit P. Sheth [356 ITR 451] Assessing Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b Pvt. Ltd [355 ITR 290] held that when the assessee made purchases and sold the finished goods as a natural corollary not the entire amount covered under such purchases would be subject to tax but only the profit element embedded therein. Similar view has been taken by the Hon'ble Gujarat High Court in the case of CIT v. Simit P. Seth [38 taxman.com 385]. Simply because the parties were not produced the entire purchases cannot be added as held by the Bombay High Court in the case of CIT v. Nikunj Eximp [216 Taxman.com 171]. I agree with the view of the lower authorities that there should be an estimation of profit element from these purchases and should be estimated reasonably as the assessee could not conclusively prove that the purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missed in limine by the Ld.CIT(A) holding that appeal is not maintainable on the ground that the appeal was manually filed and as per Rule 45 of I.T. Rules appeal shall be filed in Form-35 electronically. The Ld.CIT(A) was of the view that assessee has filed appeal in contravention of Rule 45 of I.T. Rules and therefore the appeal was dismissed as non-est. It is noticed that an identical issue had come up before the Coordinate Bench in the case of All India Federation of Tax Practitioners v. ITO in ITA.No. 7134/MUM/2017 [64 ITR (Trib.) 0704] and the Tribunal held that non-filing of appeal in the electronic form is only a procedural defect which can be cured and the Tribunal restored the appeal back to the file of the Ld.CIT(A) for disposal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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