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TMI Blog2023 (6) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... 4121 and 4123/Del/2018 for the assessment years 2009-10, 2010-11 and 2011-12. 3. The ld. Counsel for the assessee, at the outset, submits that in all these three appeals the assessee is not pressing ground Nos. 1 to 1.4 which challenge the notice issued under section 153A and the consequential assessment made under section 143(3) read with 153A of the Income Tax Act, 1961 (the Act). Similarly the ld. Counsel submits that assessee is not pressing ground No. 2 of grounds of appeal which challenge the approval obtained under section 153D of the Act being mechanical and invalid approval and consequential assessment is invalid. In view of the submissions by the ld. Counsel for the assessee ground Nos. 1 to 1.4 and ground No. 2 are dismissed as not pressed. 4. Ground Nos. 3 & 5, 4 & 5 and 4 & 5 of the appeal for assessment years 2009-10, 2010-11 and 2011-12 are directed against sustaining the addition of Rs. 1,80,815/-, 2,45,908/- and Rs. 35,809/- respectively on account of purchases made by the assessee. 4.1 Briefly stated the facts are that in the course of assessment proceedings the Assessing Officer noticed that the assessee has claimed expenses on account of purchases related to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es below. We observe that in the case of the vendor, Narayani Trading Company the ld. CIT (Appeals) sustained the addition made observing that there is no PAN number, no address proof, no ledger account counter-signed by the vendor, no ITR copy and,therefore, addition is sustained. We observe that assessee filed copy of TIN of the supplier for the purpose of identity and existence of the business concern. Assessee also filed copy of ledger account in the books of the assessee company for the period from 1.04.2008 to 31.03.2010, copy of bank payment voucher and bank statement reflecting the payments through banking channels. Assessee also filed details of payment in subsequent years along with copies of bills and vouchers. All these evidences cannot be brushed aside while treating the purchases as non-genuine. The reason for treating the purchases as non-genuine is the assessee has not produced PAN number, no address proof, no counter-signed ledger account. The assessee in fact filed copy of TIN of the supplier to prove the identity and existence of business concern. Therefore, in our view simply because the assessee has not filed PAN, copy of ITR, these purchases cannot be treated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veral site matter & some times these are even related to personal matter of employees also. In some case these are rough memorandum jottings noted which may or may not be part of financial books/transactions. The assessee has explained about the identification of the concerned person whose diaries and loose paper are belonging to The assessee has also explained about the working of the employee/ persons whose diary is belonging to and during the working period persons/ employee used the private/ personal seized diary at his table and makes different noting time to time. The diary can't be termed as books of account as the same contains non-financial noting like addresses, phone nos. calculations, to-do tasks etc and most of the noting are requests related to payments on phone to be made to vendors/ suppliers against work done on sites/projects of the assessee and group company and has no closing or opening balances. However the assessee has tried to co-relate, to the extent possible, the entries in respect of which explanation has been sought with the statutory books of accounts maintained by the assessee." 10.3 However, the Assessing Officer treated Rs. 9,00,000/- in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r its rough working for the site purpose has not been verified by the AO and in the absence of any corroboration or further investigation made by the Assessing Officer the addition based on this paper cannot be sustained. 11. The ld. Counsel also placed reliance on the following decisions:- (i) Common Cause (A Registered Society) Vs. UOI 394 ITR 220 (SC) (ii) S.P. Goyal Vs. DCIT 82 ITD 85 (Mum) (iii) CIT Vs. Girish Chaudhary 296 ITR 619 (Del) (iv) CIT Vs. D.K. Gupta 308 ITR 230 (Del) (v) CIT Vs. Ved Prakash Choudhary 305 ITR 245 (Del) (vi) CIT Vs. Vatika Landbase (P) Ltd. 383 ITR 320 (Del) (vii) Pr. CIT Vs. Umesh Ishrani 108 taxmann.com 437 (Bom) (viii) CIT Vs. Anil Bhalla 322 ITR 191 (Del) (ix) Samta Khinda Vs. ACIT 294 ITR 49 (SC) (x) CIT Vs. P.V. Kalyansundaram (in ITA Nos. 336/Del/2012 & 5515/Del/2013 dated 29.11.2016) 12. The ld. Counsel further placing reliance on the following decisions submits that if the Assessing Officer disbelieved explanation of the assessee he ought to have issued summons to the payees and in the absence thereof no adverse inference could have been drawn against the assessee:- (a) CIT Vs. Genesis Commet (P) Ltd. 163 Taxman 482 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be seen from the above the assessee has submitted in the course of assessment proceedings that these loose sheets/diaries were written by various employees and also explain about the working person whose diary is belonging to and during the working period persons/employees used the private/person seized diary at his table and makes different noting from time to time. It was also stated by the assessee that most of the noting or requests related to payments on phone to be made to vendors/suppliers against the work done on site projects of the assessee and group company and has no closing or opening balances. However, the Assessing Officer picked up certain entries in the diary where in the daily entry reflected as cash. The Assessing Officer had not made of any sort of enquiry or any investigation carried out by the Assessing Officer post search nor in the remand proceeding. To find out whether the entries appearing in the diary reflects either the assessee has received the payments or made the payments. The Assessing Officer did not bring any material or evidence to corroborate that these expenses were incurred by the assessee. The Assessing Officer has not made any effort whatso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was sustained by the ld. CIT (Appeals). The ld. Counsel for the assessee submits that an identical issue has been decided in assessee's own case in its favour for the assessment years 2006-07 and 2007-08 by the Tribunal in ITA. Nos. 4115 and 4116/Del/2018 dated 15.03.2022 following the decision of the Hon'ble Supreme Court in the case of Sangam Cinema Vs. CIT [(2011) 197 taxmann.com 203 (SC) in the absence of rejection of books of accounts. 20. The ld. DR fairly submits that the issue has been decided in favour of the assessee by the Tribunal. On perusal of the order of the Tribunal we observe that the issue has been decided by the Tribunal in favour of the assessee for assessment years 2006-07 and 2007-08 where in the Tribunal held as under:- "8. We have carefully considered the orders of the authorities below. Basis of the addition can be understood from the following chart:- Financial Year Declared cost of construction/investment in rupees Financial year- wise estimated cost of construction/investment in rupees Difference 2005-06 33,67,020 35,33,459 1,66,439 2006-07 7,60,95,749 7,98,57,327 37,61,578 2007-08 6,15,69,647 6,46,13,169 30,43,522 2008-09 12,47, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lating to the addition made by the Assessing Officer based on the loose sheets/diary found in the course of search. The issue has been examined by us while disposing of the appeals for the assessment years 2010-11 and 2011-12 in the case of the assessee Brahamputra Infrastructure Ltd. in ITA. Nos. 4121 and 4123/Del/2018 and the facts are identical. Therefore, the decision taken therein applies mutatis mutandis to the appeals for the assessment years 2008-09 to 2011-12. We order accordingly. 23. The last common ground in the appeals of the assessee for the assessment years 2009-10 to 2011-12 is in respect of disallowance of expenses/purchases made by the Assessing Officer and restricted by the ld. CIT (Appeals) to Rs. 63,125/-, Rs. 3,68,236/- and Rs. 8,438/- for these assessment years respectively. The Revenue in its appeal in ITA. No. 5123/Del/2018 is in appeal against the deletion of the addition of Rs. 98,09,358/- only for the assessment year 2010-11. 24. This issue is identical to the issue decided in the preceding paras in respect of appeals in ITA. Nos. 4119, 4121 and 4123/Del/2018 and we have already deleted the addition sustained by the ld. CIT (Appeals). Since the facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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