TMI Blog2018 (10) TMI 2028X X X X Extracts X X X X X X X X Extracts X X X X ..... with the same. The assessment order clearly reveals that the AO made necessary inquiry to find out genuineness of purchases. As regards the allegation of non- consideration of the decision in case of N.K. Protein (supra), it is relevant to note, the said decision was rendered by the hon ble apex court on 16.01.2017 which is much after the completion of assessment on 02.03.2016. Therefore, there is no occasion on the part of the Assessing Officer to consider the said decision. That being the case, the exercise of power under section 263 of the Act for non-consideration of the aforesaid decision of the hon ble apex court is wholly misconceived. In any case of the matter, the addition to be made on the basis of bogus purchase is a purely factu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent : Shri Manish K. Singh ORDER PER SAKTIJIT DEY, J. M.: The aforesaid appeal has been filed by the assessee challenging the order dated 28.03.2016 passed by the learned Principal Commissioner Of Income Tax 29, Mumbai under section 263 of the Income Tax 1961 for the assessment year 2011-12. 2. Briefly, the facts of the case are the assessee, a partnership firm, is engaged in the business of executing civil contract work. For the assessment year under dispute the assessee had filed its return of income on 29.09.2011 declaring total income of `.13,76,240/ . The return of income filed by the assessee was initially processed under section 143(1) of the Act. Subsequently, on the basis of information received from DGIT (Investigation), Mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e concerned party. However, he observed that the purchases and corresponding sales made by the assessee have been recorded in the books of accounts. Therefore, relying upon the decision of Hon'ble Gujarat High Court in case of CIT V/s. Simit P. Seth 356 ITR 451 and the decision of the same High Court in case of CIT V/s. Bholanath Polyfab Pvt. Ltd. estimated the profit @ 10% of the alleged bogus purchases and made an addition of `.5,13,630/ . After completion of assessment as aforesaid, learned PCIT in exercise of power conferred under section 263 of the Act called for and examined the assessment records of the assessee. After examining the assessment record learned PCIT was of the view that the assessment order passed by the Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e gross profit rate of 10%. He submitted, the aforesaid decision of Assessing Officer is in consonance with the decisions of the Hon'ble Gujarat high court as well as the decisions of the Mumbai Benches of the Tribunal in similar issue of bogus purchases. Thus, he submitted, the order passed under section.263 of the Act needs to be quashed. 4. The learned Departmental Representative, though, agreed that the decision of the Hon'ble apex court in case of N.K. Protein (supra) was delivered after the assessment order was passed by the Assessing Officer, however, he justified the exercise of power under section. 263 of the Act by the PCIT 5. We have considered rival submissions and perused material on record. Factual matrix of the case r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gards the second allegation of the PCIT, we are unable to agree with the same. The assessment order clearly reveals that the Assessing Officer made necessary inquiry to find out genuineness of purchases. As regards the allegation of non- consideration of the decision in case of N.K. Protein (supra), it is relevant to note, the said decision was rendered by the hon ble apex court on 16.01.2017 which is much after the completion of assessment on 02.03.2016. Therefore, there is no occasion on the part of the Assessing Officer to consider the said decision. That being the case, the exercise of power under section 263 of the Act for non-consideration of the aforesaid decision of the hon ble apex court is wholly misconceived. In any case of the m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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