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TMI Blog2024 (5) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the assessee-company is engaged in the business of jewellery making and trading, filed its return of income for AY 2013-14 on 17/9/2013 admitting a total income of Rs. 3,62,89,380/-. The case of the assessee was selected for scrutiny and the assessment was completed by the learned Assessing Officer (" Ld. AO") u/s 143(3) of the Act on 30/03/2016 making a total disallowance of Rs. 54,70,351/-(including the disallowance made on account of bogus purchases of Rs. 38,30,824/-) and thereby assessing the total income at Rs. 4,17,59,731/-. 4. Aggrieved by the order of the Ld. AO, the assessee preferred appeal before the Ld. CIT(A). Out of the total disallowance of Rs. 54,70,351/- made by the Ld. AO, the Ld. CIT(A) deleted the disallowance of Rs. 16,39,527/- towards ROC fees & 14A disallowance , but confirmed the disallowance of Rs. 38,30,824/- on account of bogus purchases . 5. Aggrieved by the said order of the Ld. CIT(A), assessee is in appeal before the Tribunal. The learned Authorized Representative [AR] submitted that the basis for making of addition in the hands of the assessee was Question No.15 at page-2 of the order of the Ld. AO which is reproduced as under: "Q.15. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0619 (ii) Pr. CIT vs. Vaman International (P.) Ltd [2020] 422 ITR 0520 (Bom.) (iii) CIT vs. Odeon Builders (P.) Ltd [2019] 110 taxmann.com 64/418 ITR 315/266 Taxman 461 (SC) (iv) DCIT vs. Rajeev G. Kalathil [2014] 51 taxmann.com 514 / [2015] 67 SOT 0052 (Mumbai) (v) PCIT vs. Tejua Rohitkumar Kpadia (SC) Special Leave Petition (Civil) Diary No. 12670 / 2018, dated 4/5/2018 (vi) PCIT vs. Shapporji Pallonji & Co. Ltd (Bombay High Court) Appeal No. 1298 of 2017, dated 4/3/2020. Further, before us the learned AR has also made written submissions in support of his argument. 7. Per contra, learned DR relied on the orders of the learned Revenue Authorities. Before us, the learned DR has made the following written submissions: "This case was listed on 14/5/2024 before the Hon'ble Bench with the following GOA and the arguments presented by the Revenue orally before the Hon'ble Bench which is hereby being submitted in writing. The grounds of appeal taken by the assessee do not speak about the statement recorded dated 15/3/2016 of one of the Director Sh. Nitin Gupta, who is unable to answer the questions asked and has not raised the issue of cross examination as is raised now be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of various High Courts and the Hon'ble Supreme Court in which the onus is on the assessee to establish the genuineness of the purchase made and that only bank transaction is not sufficient to prove the genuineness. With regard to cross examination as one of the ground taken by the assessee, the opportunity was provided to the assessee by the AO to rebut the material on the basis of which the AO was intended to proceed. There are number of cases namely- In the case of Nokia India Private Limited vs. DCIT (2015) 59 taxmann.com 212 (Delhi Tribunal) - in which statement was duly provided to the assessee during proceedings before the AO but the assessee never asked for cross examination hence this plea of cross examination raised at such later stage is not justified. M/s. Pebble Investment and Finance Limited vs. ITO 207-TIOL-238- SC-IT - The Hon'ble Supreme Court has ruled so far as request for cross examination is concerned, we find that assessee during the first round of proceedings before the AO did not raise any such issue the request of the assessee is not tenable. Roger Enterprises (P) Ltd vs. CIT (2016) 72 taxmann.com 167 (SC) - The Hon'ble Supreme Court while dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turbed by the Ld. CIT(A). Further, the submission of the assessee before us is that the assessee has discharged its initial onus cast on it by producing the record of the purchases made by the assessee viz., purchase invoices, bank statement, stock register etc. However, the Ld.AO has not granted any relief to the assessee with respect to the purchases made from M/s. Ankia Exports and M/s. Pankaj Exports. The Ld. AO has failed to brought on record that more additional documents or evidences could have been produced by the assessee to elucidate whether the purchases made by the assessee were genuine or not. Once the assessee has produced the documents evidencing the purchases of the goods from the said two entities viz., M/s. Ankia Exports and M/s. Pankaj Exports and the payments made thereto, the onus to prove the negation is shifted to the Ld.AO. The Ld. AO should have been examined M/s. Ankia Exports and M/s. Pankaj Exports by issuing summons U/s. 131 of the Act or calling for informations u/s 133(6) of the Act and find out whether these two entities existed or non-existed or in alternative should have been brought on record any evidence to prove that the invoices produced by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. CIT(A), it is abundantly clear that the assessee has raised the specific ground with respect to the violation of principles of natural justice. However, the Ld. CIT(A) at paragraph-16 of his order has dealt with the above said issue in the following manner: "The Ground No.3 pertains to claim of the appellant that no opportunity of cross examination was provided. The appellant has been harping upon certain cross verifications to be required with certain parties on the basis of certain evidences relied upon by the Ld. AO. The appellant has claimed the purchase as genuine, when there are evidences indicating that the same has been an accommodation entry. The appellant has claimed the expenditure and therefore the onus to prove the same is on the part of the appellant and it is free to produce the above persons as part of its defence but however the appellant has failed to produce any such person involved in the transaction which clearly shows that the appellant has no bonafide case in the matter. The appellant has further requested for cross examination of the persons whose statement has been relied upon, it is noted that person has been examined by the Investigation Wing an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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