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Showing 1 to 20 of 2074 Records
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2019 (3) TMI 2083
Addition u/s 145A - loading excise duty on closing stock of work in progress - HELD THAT:- The issue is now squarely covered by the decision of the Tribunal in the own case of the assessee for assessment year 2005-06 & Ors. as held the assessee has not paid any excise duty on the closing work in progress and hence there was no question of loading any excise duty on estimation basis.
Even otherwise, if the value of the excise duty has to be included in the closing stock then the value of excise duty has also to be included in the opening stock and in that event there would be no difference in the result of the value of the opening stock and closing stock. Thus no justification in making the aforesaid addition - Appeals of the Revenue are dismissed.
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2019 (3) TMI 2082
Seeking a review of a judgment and order - review petition challenges the decision to remand certain issues back to the West Bengal Administrative Tribunal for reconsideration - HELD THAT:- In A.K. Kaul [1995 (4) TMI 324 - SUPREME COURT], the appellants were officers of the Intelligence Bureau. On 23.07.1979, the employees of the Bureau formed a trade union and the appellants got elected as office-bearers thereof. By a circular, the Joint-Director of the Bureau warned that disciplinary action would be taken against employees partaking in the trade union's activities. This circular was impugned in the Supreme Court, which by an interim order, restrained its implementation. Subsequently, the appellants were dismissed from service by orders passed under Article 311 (2) (c) of the Constitution of India. The appellants filed writ petitions, which were transferred to and ultimately dismissed by the Central Administrative Tribunal, and they preferred an appeal against the Tribunal's decision. The question that arose in appeal was whether an order passed under Article 311 (2) (c) of the Constitution is subject to judicial review or not. The Apex Court held that it is subject to judicial review and the principles laid down in the S.R. Bommai -v- Union of India [1994 (3) TMI 380 - SUPREME COURT] case governing the justiciability of the satisfaction of the President in the matter of exercise of power under Article 356 would be applicable to the present case.
While arriving at this conclusion, the Court espoused on judicial review and justiciability of matters before it. The Court held that the judiciary is vested with the power to check the validity of an action of every authority functioning under the Constitution on the touchstone of the Constitution in order to ensure that powers conferred by the Constitution on that authority are not transgressed. On account of want of judicially manageable standards, some matters may not be within the purview of the judicial process and such matters are regarded as non-justiciable.
The fact that the Court held that the grant of dearness allowance is a legally enforceable right meant that the Court considered the issue of such grant of dearness allowance to be justiciable and then proceeded to render the decision therein. Had the Court considered the grant of dearness allowance to be a non-justiciable right, the Court would not have pronounced a decision on this matter. It is implicit in the said judgment that the author regarded dearness allowance to be a justiciable right and, accordingly, held it to be legally enforceable. Thus, there was no need for the Court to separately enunciate that the matter before the Court was justiciable or that dearness allowance is a justiciable right.
Conclusion - There are no error apparent on the face of the record and the review petition is not maintainable.
This is not a fit case for review - Application dismissed.
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2019 (3) TMI 2081
Valuation - non-addition of the cost incurred by the appellant for replacement/repairs undertaken by them of damaged parts of containers used in international transportation in the taxable value - HELD THAT:- The matter is fully covered by the appellant’s own case [2018 (4) TMI 1035 - CESTAT CHENNAI] where it was held that 'Hon’ble Supreme Court in Jain Brothers [2012 (7) TMI 935 - SUPREME COURT], to state that the cost of goods supplied during repair cannot be added to the value of the taxable service in view of the said exemption.'
Appeal allowed.
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2019 (3) TMI 2080
TP Adjustment at entity level - as argued TPO should have restricted the adjustment only in respect of international transactions with the AE entered into by the Appellant - HELD THAT:- We find that the issue under dispute is squarely covered in assessee’s own case for the Asst Year 2013-14 [2019 (1) TMI 2063 - ITAT MUMBAI] wherein it was held that TP adjustment shall be restricted to international transactions with AE only. Thus, we direct the ld TPO to recomputed the ALP of the international transactions of the assessee by considering only the transactions with AE.
Depreciation on printers at 15% v/s 60% - We find that the lower authorities had denied depreciation at the rate of 60% based on action taken in Asst Year 2011-12. But we find from the aforesaid CITA order for Asst Year 2011-12 in assessee’s case, that the depreciation on printers was granted at 60%. There is no reason to take a divergent stand during this year - we direct the ld AO to grant depreciation at the rate of 60% on printers for the Asst Year 2012-13. The Ground No. 9 raised by the assessee is allowed.
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2019 (3) TMI 2079
Revision u/s 263 - period of limitation - as per CIT subjected reassessment order passed u/s 143(3)/147 was without making proper enquiries w.r.t. the share capital and share premium - second reopening of the assessment AO again proposed to make the addition in respect of the accommodation entries received on account of share capital and share premium from six companies
HELD THAT:- Even if an order of assessment is reopened, the whole proceedings would start afresh but it would not disturb the issues which were not subject-matter of reopening of the assessment and even not falling under the purview of Expln. 3 to s. 147 of the Act. Therefore, for the purpose of limitation under s. 263(2), if the jurisdiction under s. 263 is invoked on an issue which was not subject-matter of reassessment, then the limitation would reckon from the original assessment order and not from the reassessment order.
Accordingly, limitation as provided u/s 263(2) being two years from the end of the financial year would reckon from the original assessment order passed u/s 143(3) on 15th Dec, 2010 and not from the subsequent reassessment order. Accordingly, the impugned order is invalid being without jurisdiction as the time-limit for passing the order was already expired. Hence the same is quashed being invalid. Decided in favour of assessee.
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2019 (3) TMI 2078
Reopening of assessment - addition u/s 68 - unexplained credit entries /share capital - non discharge of initial onus of proof by assessee to establish by cogent and reliable evidence of the identity of the investor companies, the credit-worthiness of the investors, and genuineness of the transaction - HELD THAT:- Civil Appeal is allowed, in terms of the signed reportable judgment.
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2019 (3) TMI 2076
Penalty order passed u/s 271AAB - income surrendered by the assessee on account of LTCG from purchase and sale of equity shares - addition @ 30% of the undisclosed income which was admitted during the search - whether the surrender made by the assessee in the statement recorded u/s 132(4) will be regarded as undisclosed income without testing the same with the definition as provided under clause (c) of Explanation to section 271AAB ? -
HELD THAT:- The penalty under section 271AAB is not automatic but the AO has to take a decision as per the provisions of section 271AAB and particularly in the light of the definition of the undisclosed income as prescribed in the Explanation to section 271AAB of the Act.
We hold that the income surrendered by the assessee in the statement recorded u/s 132(4) does not fall in the ambit of definition of undisclosed income as contemplated in Explanation to section 271AAB. Accordingly, the penalty levied by the AO and sustained by the ld. CIT (A) is not sustainable and the same is deleted. Assessee appeal allowed.
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2019 (3) TMI 2075
Levy of penalty u/s 271AAB - addition @ 30% of the undisclosed income -Reliability of document found during the search - HELD THAT:- Once the assessee has established the fact that all these transactions are recorded in the books of account and also produced, the relevant documentary evidence to establish the genuineness of the purchase and sale of shares through Stock Exchange, then the mere disclosure and surrender of income would not ipso facto lead to the conclusion that the amount surrendered by the assessee is undisclosed income in terms of section 271AAB of the Act.
For bringing the income surrendered by the assessee in the fold of undisclosed income as per the definition of “undisclosed income” in Explanation to section 271AAB, the said income must represent either any money, bullion, jewellery or other valuable article or thing or any entry in the books of account or other documents but has not been recorded in the books of account as on the date of search. Therefore, the primary condition for treating an income as undisclosed income is that it should represent inter alia any entry in the books of account or other documents found during the search but the said income is not recorded in the books of account.
In the case in hand, the document found during the search is not an incriminating material when the entry and the income were duly recorded in the books of account. Therefore, the statement of the assessee recorded under section 132(4) would not constitute incriminating material. Therefore, the said income disclosed by the assessee cannot be considered as undisclosed income in terms of section 271AAB of the Act.
As we hold that the income surrendered by the assessee in the statement recorded under section 132(4) does not fall in the ambit of definition of undisclosed income as contemplated in Explanation to section 271AAB. Accordingly, the penalty levied by the AO and sustained by the ld. CIT (A) is not sustainable and the same is deleted. Decided in favour of assessee.
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2019 (3) TMI 2074
Exemption from levy of additional duty (CVD) where the manufactured goods are exempted from duty of excise - it was held by CESTAT that 'In respect of the exemption notifications that are absolute and unconditional, all domestic manufacturers will be entitled to the benefit of the exemption notification. Therefore, the importers will also be entitled.'
HELD THAT:- Leave granted.
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2019 (3) TMI 2073
Maintainability of petition - assessee had failed to avail of the appellate remedy because there was no jurisdictional issue involved - invocation of extended period of limitation - suppression of facts or not - HELD THAT:- In the present case, the show-cause notice made out a case of mis-statement or suppression of facts since the underlying theme of such show-cause notice was that the assessee had not appropriately described its product or furnished the declaration as required. However, the show-cause notice did not refer to the mis-statement or the suppression of facts being willful. In any event, the order impugned did not hold the assessee liable upon holding, as a matter of fact, that there was any mis-statement or suppression of facts which was made by the assessee and that such mis-statement or suppression of facts was willful.
The law as it stood at the relevant time was that the suppression or mis-statement was actionable only if such suppression or mis-statement was willful. The law has been changed since and the word 'willful' may not cover both mis-statement and suppression of facts, today.
Thus, it is evident that the order of the adjudicating authority assailed by the assessee in the petition under Article 226 of the Constitution was in error of jurisdiction as it disregarded the assessee's objection as to limitation without holding that the assessee's conduct was such that amounted to willful mis-statement or willful suppression of facts - the Single Bench has appropriately noticed the error of jurisdiction on the part of the adjudicating authority in passing the order dated December 6, 2005.
The judgment and order impugned do not call for any interference - application disposed off.
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2019 (3) TMI 2072
Grant of an Environmental Clearance [EC] for the development of a greenfield international airport at Mopa in Goa - Disclosure of Environmental Sensitivity, including forests and Ecologically Sensitive Zones (ESZs) - Public Consultation and Appraisal by the Expert Appraisal Committee (EAC) - lack of sampling points - non-disclosure of reserved forests - HELD THAT:- It would be appropriate if the EAC is directed to revisit the conditions subject to which it granted its EC on the basis of the specific concerns which have been highlighted in this judgment. Such an exercise primarily is for the EAC to carry out in its expert decision making capacity. The EAC is entrusted with that function as an expert body. The role of judicial review is to ensure that the rule of law is observed. Hence, it is proposed by the directions which we will issue under Article 142 of the Constitution, to direct the EAC to revisit the conditions for the grant of an EC. While doing so, it would be open to the EAC to have due regard to the conditions which were incorporated in the order of the NGT and to suitably modulate those conditions in pursuance of the liberty which we have preserved to it. To facilitate an expeditious decision, the EAC is directed to carry out this exercise in a prescribed time schedule during which period, the EC shall remain suspended.
The EAC shall revisit the recommendations made by it for the grant of an EC, including the conditions which it has formulated, having regard to the specific concerns which have been highlighted in this judgment - Until the EAC carries out the fresh exercise, the EC granted by the MoEFCC on 28 October 2015 shall remain suspended - appeal allowed.
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2019 (3) TMI 2071
CENVAT Credit - duty paying invoices - denial on the ground that the same stands availed on the basis of photocopy of invoices - extended period of limitation - HELD THAT:- The Revenue is not disputing either the factum of payment of duty on inputs or receipt and utilization of the same in the manufacture of the final product.
The Hon’ble Jammu & Kashmir High Court in the case of SHIVAM ELECTRICAL INDUSTRIES VERSUS UNION OF INDIA [2018 (2) TMI 816 - JAMMU AND KASHMIR HIGH COURT] has held that Cenvat Credit availed on the basis of photocopy of documents is not to be denied inasmuch as Rule 9 of Cenvat Credit Rules, 2004 nowhere provided that credit cannot be availed on the basis of Photocopy of the documents especially when Department did not dispute the correctness of the contents of the photocopy of invoices produced by the assessee.
To the similar effect is Tribunal’s decision in the case of CONTROLS & DRIVES COIMBATORE (P) LTD. VERSUS COMMISSIONER OF C. EX. [2007 (11) TMI 57 - CESTAT CHENNAI] laying down that credit availed on the basis of photocopy should not be denied in the absence of any dispute about receipt and duty paid nature of the goods and utilization in the manufacture of final products.
The impugned order is set aside - appeal allowed.
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2019 (3) TMI 2070
Dishonour of Cheque - Execution of a money decree - attachment of the immovable and movable properties of the judgment-debtor - HELD THAT:- All that is stated is that the judgment- debtor and its Directors have been convicted in the Section 138 NI Act proceedings and have been directed to pay the cheque amount along with interest. It is nowhere stated in the list of dates also that the payments have been received.
The execution petition is thus found to be in abuse of the process of the Court and the decree-holder therefor is burdened with costs of Rs. 50,000/-, out of which Rs. 25,000/- be deposited with Delhi High Court Advocates Welfare Trust and Rs. 25,000/- be paid to the counsel for the judgment-debtor as costs of today’s hearing, both within ten days of today - If the decree-holder, within ten days does not produce a receipt of deposit / payment of such costs with the Delhi High Court Advocates Welfare Trust and to the counsel for the judgment-debtor and does not show the same to the Court Master, the Court Master to have the execution petition re-listed for appropriate action against the decree-holder.
The execution petition is disposed of as satisfied.
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2019 (3) TMI 2069
Dishonour of Cheque - compounding of offence under Section 147 of the Negotiable Instruments Act, 1881 - only grievance of the petitioner is that actual liability of the accused persons is much more than the cheque amount involved in the case - HELD THAT:- Law on the point is settled that the Court is to consider dishonour of cheque(s) only which are subject matter of the complaint. The Court cannot enforce compounding of cheques which were not presented by the complainant for encashment. Learned Magistrate has rightly passed the order thereby compounding the offence and at the same time directed the accused to make payment of Rs. 2,00,000/- (i.e., total cheque amount) plus Rs. 20,000/- as litigation expenses and allowing 6% interest upon the cheque amount. The said order has been passed in the spirit of Section 147 of the Act and as per view taken by Hon’ble Apex Court in Kanchan Mehta's case [2017 (10) TMI 218 - SUPREME COURT] and the same does not call for any interference by this Court.
The present petition stands dismissed.
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2019 (3) TMI 2068
Addition on account of loss in the plastic division - Rectification of factual mistake committed taking up the wrong figures of sales - HELD THAT:- There was a factual mistake committed by the AO in not taking into consideration the details about the plastic division as per the tax audit report filed by the assessee in From 3CD, the audited annual accounts which were duly certified by the CA and downloaded by them from the portal of the Ministry of Corporate Affairs which were prepared after conducting inspection of assessee's record available with the Registrar of Companies whereas the details of the plastic division were given in Schedule XVIII of the balance sheet.
AO should have rectified the factual mistake committed by him in taking up the wrong figures of sales, namely, in the place of Rs. 50,02,37,179/-, he had taken Rs. 45,64,60,012/- and thereby arrive at a loss of Rs. 4,18,26,767/- instead of finding the profit of Rs. 19,50,401/-.
The factual error committed by the AO is rectified by the learned CIT(A) by looking into the record and on that aspect the Revenue should not have any grievance. This ground of appeal is devoid of merit and is accordingly dismissed.
Addition on account of trade discount allowed to the customers - In so far as the relationship between M/s. Mohsen Line General Trading, LLC and M/s. Pearl Beach General Trading LLC, CIT(A) found that in view of the letter dated 1.8.2009 whereby M/s. Mohsen Line General Trading, LLC had informed the assessee on two contracts dated 1.7.2009 in respect of supplies of 7000 MT to be effected to their associate concern M/s. Pearl Beach General Trading LLC of "MOHSEN" brand rice.
Such a factual finding is not disputed in this appeal and in view of the fact that transaction took place in this year to crystallize after the date of balance sheet or before the settlement of accounts, the assessee rightly claimed the deduction of this amount in this year and it cannot be denied. We are in agreement with the submissions made on behalf of the assessee. On this premise, we do not find any reason to interfere with the findings of the learned CIT(A) and accordingly, dismiss this ground.
Shortage of stock - CIT(A) recorded that the shortage of 1447.17 qtls. works out to 0.0032% of sales made and according to the FCI norms 0.50% is the normal wastage - HELD THAT:- There cannot be any dispute that some shortage is bound to happen in transit, loading and unloading also. When the FCI accepts 0.50% as normal, we have to keep in mind that such a shortage was acceptable in a situation where there is no process involved. However, in the matter in hand, some process is involved. So, normally apart from the loading, unloading and transportation, the process losses should also be considered. However, in this matter, the shortage recorded is only 0.0032% and by no stretch of imagination, could we say that this is unacceptable. We do not find any irregularity or illegality in the findings of the learned CIT(A). With this, appeal of the revenue stands dismissed.
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2019 (3) TMI 2067
Additions based only on the statement recorded during search - addition on account of on-money on the basis of the seized documents - entire case of the appellant Revenue is based on the confession of the assessee which was extracted during the search/seizure and survey proceedings - assessee later retracted from the confession made
HELD THAT:- The circular No. 286/2/2003-IT (Inv.II) dated 10.3.2003 which has been reiterated in circular F.No.286/98/2013-IT (Inv.II) dated 18.12.2014 issued by the Board and the general principles of appreciation of evidence would definitely come into play and while appreciating the rival contentions Court would definitely require corroboration of the confessional statement by credible and tangible evidence failing which, it will be considered totally unsafe to rely solely upon the confession for upholding the liability fastened upon the assessee by the ACIT.
Since, in the case at hand, admittedly, the Income Tax Authorities did not collect any tangible, corroborative evidence so as to substantiate the allegation of undisclosed income, manifestly, the view taken by the ITAT in the impugned judgment that the department failed to provide cogent, tangible and satisfactory evidence regarding the additional undisclosed income of the assessee, is absolutely justified and the impugned judgment cannot be termed to be illegal or perverse by any stretch of imagination warranting interference therein in exercise of the appellate jurisdiction of this Court. We are duly satisfied that no substantial question of law is involved in the matter so as to question the legality or validity of the impugned judgment.
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2019 (3) TMI 2066
Interpretation of Section 44BB - Service tax amount inclusion/exclusion while computing the gross receipts u/s. 44BB - Whether ITAT has erred in excluding service tax from the amount paid or payable to the assessee on account of provisions of services and facilities in connection with or supply of plant and machinery on hire used, or to be used, in the prospecting for, or extraction or production of, mineral oils in India for the purpose of determining presumptive profit u/s 44BB? - HELD THAT:- As decided in Mitchell Drilling International (P.) Ltd. [2015 (10) TMI 259 - DELHI HIGH COURT] for the purposes of computing the 'presumptive income' of the Assessee for the purposes of Section 44BB of the Act, the service tax collected by the Assessee on the amount paid to it for rendering services is not to be included in the gross receipts in terms of Section 44BB(2) read with 44BB(1). The service tax is not an amount paid or payable, or received or deemed to be received by the Assessee for the services rendered by it. The Assessee is only collecting the service tax for passing it on to the government. Revenue appeal dismissed.
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2019 (3) TMI 2065
Unexplained cash deposits - unexplained income of the assessees - CIT (A) considered the fact that peak credits in such situation renders the best method of addition - HELD THAT:- Though in the calculation of the peak credit, CIT (A) has given the benefit of set off of the opening cash balance and opening advance, when peak credit is being considered, and when the business is the same as carried on in the earlier years, it is the peak credit of the earlier year that is liable to be considered as available for explaining the peak credit of the current year.
We are not directing this method to be applied as the assessees have not raised any ground for this claim, and also because such a claim would require verification of facts and consequently such a ground cannot be raised as a fresh or additional ground at this stage.
Revenue has not been able to point out any error in the findings of the CIT(A). Further, under similar circumstances in respect of another member of the same group being Shri A. Anbukkannan, the coordinate Bench of this Tribunal has also upheld the findings of the CIT (A) in adopting the peak credits. This being so, we do not find any error in the findings of the CIT (A) which calls for any interference. Appeals filed by the assessee as also appeals filed by the Revenue are dismissed.
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2019 (3) TMI 2064
Reopening assessment u/s 147 on a non-existing entity - assessment on a dissolved company - curable defect u/s 292B or not? - HELD THAT:- As decided BMA Capfin Ltd [2018 (12) TMI 1467 - SC ORDER] assessment order cannot be passed in the case of non existing company especially when this has been brought to the knowledge of the department.
As decided in Dimension Apparels (P) Ltd.[2014 (11) TMI 181 - DELHI HIGH COURT] that order of assessment on a company which cease to exist is not a procedural irregularity which can be cured by section 292B
Assessment order cannot be passed in the case of non existing company especially when this has been brought to the knowledge of the department. Decided in favour of assessee.
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2019 (3) TMI 2063
Addition made by enhancing the gross profit rate - CIT(A) deleted addition following preceding AY order - HELD THAT:- Addition made by the AO has rightly been deleted by the Ld. CIT (A). The assessee has maintained regular books of account which are duly audited. The assessee has maintained complete stock records. AO has not pointed out any error or discrepancy in the books of account maintained by the assessee.
AO has also accepted the opening stock, purchases, sales and closing stock. The cash sales have been duly recorded in the books of accounts. In absence of any statutory provision prohibiting sales in cash, no adverse inference can be drawn merely on the basis the sales have been made in cash.
This is a case of search and nothing incriminating was found during the search so as to doubt that the sales recorded in the books of account were understated. AO has made the impugned addition merely on the basis of a doubt as has been rightly pointed out by the Ld. AR by referring to the assessment order. Further, in absence of rejection of the books of accounts, the ad hoc addition to the GP Rate cannot be sustained - we uphold the order of the Ld. CIT (A) deleting the addition - Decided against revenue.
Addition on account of the payments to the farmers in respect of the purchase of food grains - addition made on the basis that the assessee had not furnished any details of farmers like their addresses, details of purchases made from them, any documentary evidences showing that purchases have been actually made, land holdings of the farmers and proof of cultivation done by the farmers - assessee had not furnished evidence regarding withdrawal of cash for making payments to the farmers - CIT(A) deleted addition - HELD THAT:- It is not the case of the assessee that it is claiming any exemption on such income. In these circumstances, we are of the view there was no justification for the AO to draw any adverse inference merely because vouchers of purchases in cash were found during the search. These vouchers are part of the regular books of account and it is also not the case that such vouchers were unaccounted for. We have also gone through the various judgments relied upon by the Ld. DR. The facts of these judgments are different than the present case.
In these cases, there were deposits in the bank for sales made in cash against purchases in credit and the assessee had failed to substantiate the credit purchases. It was on these facts that the additions were made under section 68of the Act. In the present case, the assessee has first withdrawn cash and then made the purchases from the cash so withdrawn and after making sales against paid purchases received the cash against such sales. So, first there is source of the money in the case of the assessee and hence, it cannot be said that the cash received against sale is unexplained credit. Thus we are in agreement with the findings of the Ld. CIT (A) and see no reason to interfere with the same and accordingly, ground no.3 is dismissed.
Addition on the basis of the seized document - CIT (A) has restricted this addition on the basis of peak credit - HELD THAT:- The seized document pertains to the period 1st April, 2007 to 27th November, 2007. The transactions recorded therein on these pages pertain to this period. This period will fall in assessment year 2008-09 and not in Assessment Year 2007-08 in which year the AO has made the addition. CIT DR during the course of the hearing has fairly admitted that this document does not pertain to the year under consideration. Taking into consideration this fact, the addition made by the AO is unsustainable and, accordingly, the AO is directed to delete the entire addition - Ground of assessee’s appeal is allowed.
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