TMI Blog2017 (4) TMI 1578X X X X Extracts X X X X X X X X Extracts X X X X ..... sing the order of CIT(A). The CIT(A) while considering the case has relied upon the judgment of M/s Gem Paradise [ 2016 (11) TMI 1400 - RAJASTHAN HIGH COURT] which has not been referred by the Tribunal. Apart from that, in our considered opinion, the decision of Gujarat High Court was rightly relied by the Assessing Officer and will apply in the facts of the case. We are of the considered opinion that the Tribunal has seriously committed an error in reversing the view taken by the CIT(A). No doubt, the contention raised by Mr. Singhi counsel for the department, that the view taken by the CIT(A) also requires to be modified, but while framing the issues this court has framed only one issue. We are of the opinion that the view taken by the CIT(A) is required to be reversed but looking to our limitation we are going back to the order of CIT(A) and the order of the Tribunal is reversed and the view taken by the CIT(A) is confirmed. - Decided against assessee. - D.B. Income Tax Appeal No. 673/2011, 668/2011 - - - Dated:- 24-4-2017 - Hon'ble Mr. Justice K.S. Jhaveri And Hon'ble Mr. Justice Vijay Kumar Vyas For the Appellant(s) : Mr. Anuroop Singhi For the Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... totally reversing the finding has rightly given ₹ 5,00,000/-, without justifying the record. FACTS IN APPEAL NO.668/2011. 3.1. The brief facts are that the assessee is engaged in the business of jewellery and gem stones. During the course of assessment proceedings it was revealed that the assessee has made purchases of ₹ 4,22,34,219/- from different parties, which in spite of ample opportunities could not be proved and assessee failed to discharge the primary onus of providing the genuineness of the said purchase. Names of all the parties were given but books of accounts of other parties were not given. Thus, after considering all the facts and circumstances of the case, the Assessing Officer has rejected books of accounts relying upon Gujarat High Court judgment on the basis of 25% of the bogus purchase and assessed that the unverifiable purchase was ₹ 1,05,58,554/- which has been partly modified by the Tribunal to the extent of 2.19% and the Tribunal has totally reversing the finding has rightly given ₹ 4,00,000/-, without justifying the record. 4. Counsel for the appellant-department has fairly contended that the issue is squarely covered by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as purchases from such bogus suppliers. The above findings were recorded on the basis of the material on record of the Tribunal. 6. The Supreme Court in the case of Municipal Corporation of Delhi vs. Gurnam Kaur, AIR 1989 Supreme Court 38, it has been observed as under: 11. . Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das' case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachments from any public place like pavement or public streets, and without any citation of authority. Accordingly, we do not propose to uphold the decision of the High Court because, it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incur am when it is given in ignorance of the terms of a statute or of a rule having the force of a sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for making best judgment assessment the only relevant thing, required to be considered was, application of particular GP rate, which has been applied by the learned Tribunal, and the learned CIT(A), on relevant consideration, being the GP rate applied in the last year. 8. In the case of Saraswathi Oil Traders vs. Commissioner of Income Tax [2002] 254 ITR 0259, the Supreme Court has observed as under: The Tribunal declined to make the reference because, in its view, the question was not a question of law. The High Court found it necessary to record that a careful assessment of the record would indicate that there was a definite point of law involved and that the tribunal s conclusion was incorrect. As we read the question, it does not involve any question of law and the High Court has not recorded what definite point of law it found was involved. We must record that, with fairness, the learned Attorney-General has not supported the order of the High Court. 9. In the case of Commissioner of Income Tax vs. Leader Valves P. Ltd. [2006] 285 ITR 0435, it has been held as under: As regards question No. (i) Shri Patwalia, learned Counsel for the Revenue, has vehemently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng is shown to indicate that any part of the fund given by the assessee to these parties came back to the assessee in any form. It is further observed by the Tribunal that there is no evidence anywhere that these concerns gave vouchers to the assessee in any way. With these observations, the Tribunal ultimately has observed that there are certain doubtful features, but the evidence is not adequate to conclude that the purchases made by the assessee from these parties were bogus. It may be stated that the assessee was given credit facilities for a short duration and the payments were given by cheques. When that is so, it cannot be said that the entries for the purchases of the goods made in the books of account were bogus entries. We, therefore, do not find that the conclusion arrived at by the Tribunal against the weight of evidence. In that view of matter, we answer that question in the affirmative, that is, in favour of the assessee and against the Revenue. Accordingly, the reference stands disposed of with no order as to costs. 11. In the case of CIT vs. Jagdishchandra Vishwakarma [2011] 59 DTR (MP) 415, it has been held as under: 4. Having considered the submissions mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hases from the above said parties could not be trated as not genuineness and hence purchases made from them (abovesaid to parties) are to be treated as allowable deduction. The deduction made of ₹ 33,13,706 is hereby deleted. 12. In the case of CIT vs. Amrapali Jewels (P) Ltd. (2012) 65 DTR (Raj.) 196, it has been held as under: 6. In the first place, what is involved in the case is a pure question of fact and not any question of law much less substantial question of law. Secondly, this Court cannot again in this appeal undertake the examination of factual issues nor can draw any factual inferences on the basis of explanation offered by assessee. Thirdly, once the explanation is accepted by an appellate court on facts, then in such event, a finding recorded on such explanation is binding on the High Court being a finding of fact. 7. In out opinion, it is essentially for the taxing authorities to decide as to what should be the % rate of G.P. that should be applied on particular yearly turnover of the assessee. It is a matter of discretion to be exercised on settled practice applicable to business standards and which is prevalent in commercial world. There is no har ..... X X X X Extracts X X X X X X X X Extracts X X X X
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