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TMI Blog2019 (1) TMI 1970X X X X Extracts X X X X X X X X Extracts X X X X ..... the CIT(A), Pune, all dated 27.03.2017, for the assessment years 2007-2008 to 2012-2013, respectively. Since the issues involved in all the aforementioned appeals are common but different in figures, therefore, all the appeals are heard en masse and disposed of by this consolidated order. 2. First, we shall take up the appeals of the assessee-Arihant Enterprises in ITA Nos.4350 to 4352/Mum/2017 for the assessment years 2007-2008 to 2009-2010 along with appeals of Revenue in ITA Nos.4071 to 4073/Mum/2017 for the assessment years 2007-2008 to 2009-2010. For the sake of convenience, the facts and grounds mentioned in the appeal of the assessee in ITA No.4350/Mum/2017 for the assessment year 2007-2008 are taken into consideration for deciding the appeals, wherein the assessee has raised the following grounds of appeal : The following grounds of appeal are without prejudice to one another. 1. On the facts and circumstances of the appellant's case and in law the Ld Commissioner of Income Tax (Appeals) erred in confirming the action of Ld. Assessing Officer's in making additions which are not based on Materials seized pursuant to an action u/s 132 of the Act which is illegal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchases were genuine and the statements recorded by the sales tax department cannot be relied on without affording any opportunity to the assessee to cross examine the deponents that all the payments had been made through banking channels. However, the AO relying on the enquiries made by the sales tax department, completed the assessment and made the disallowance. 4. In appeal, the CIT(A) partly allowed the appeal of the assessee, against which the assessee and revenue both are in appeals before the Tribunal for the respective assessment years. 5. We have heard the rival submissions of both the parties and perused the material on record including the report of the DCIT dated 30.11.2018 and observe that there is incriminating materials found during the course of search. The issue raised in ground No.1 in all the three appeals of the assessee-Arihant Enterprises for the assessment year 2007-2008 to 2009-2010 is against the order of CIT(A) upholding the order of AO thereby confirming the various additions without appreciating the fact that there is no incriminating seized material found during the course of search u/s.132 of the Act. A search in the case of the assessee was conducte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly, the appeals of the assessee in ITA Nos.4350 to 4352/Mum/2017 for the assessment years 2007-2008 to 2009-2010 are allowed. 7. Since we have directed the AO to delete the addition made on account of bogus purchase and non-deduction of TDS at source u/s.40(a)(ia) of the Act, while deciding the appeals of assessee in ITA Nos.4350 to 4352/Mum/2017 for the assessment years 2007-2008 to 2009-2010, as no addition can be made in the case unabated assessment where there is no incriminating material was found during the course of search, therefore, the appeals of the Revenue have no legs to stand and accordingly, we dismiss the appeals of the Revenue in ITA Nos.4071 to 4073/Mum/2017 for the assessment years 2007-08 to 2009-10, respectively. 8. Now, we shall take up appeal of the assessee in ITA No.4353/Mum/2017 and appeal of the Revenue in ITA No.4374/Mum/2017 for the assessment year 2010-2011. In the appeal of the assessee the only issue is in respect of part confirmation of the disallowance on account of bogus purchase by the CIT(A) and in the appeal of the Revenue, the revenue is aggrieved by the relief granted by the CIT(A). 9. Brief facts are that on the date of search on 18.10.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogus purchase and in appellate proceedings, the CIT(A) has partly confirmed to the tune of 15% of the total bogus purchase, against which the assessee is in appeal before the Tribunal and the Revenue is aggrieved by the relief granted by the CIT(A). 15. At the outset, ld. AR before submitted that the issue involved in the present appeal of the assessee is squarely covered by the decision of coordinate bench of the Tribunal in the case of M/s Mahaavir Universal Homes Pvt. Ltd. in ITA Nos.4348&4349/Mum/2017 for the assessment year 2011-2012 & 2012-2013, order dated 28.11.2018, wherein the disallowance made on account of bogus purchase has been partly confirmed by the ld. CIT(A) at 3% of the bogus purchase. 16. After hearing both the parties and perusing the material available on record, we find that under the identical facts and in the case of assessee's group concern, the coordinate bench of the Tribunal in the case of M/s Mahaavir Universal Homes Pvt. Ltd. (supra) has directed the AO to apply a GP rate of 3% to assess the bogus purchase. We, therefore, respectfully following the same, direct the AO to apply the GP rate of 3% of the bogus purchase. Accordingly, we partly allow the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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