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TMI Blog2012 (8) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... A.O. on account of purchases, without appreciating the facts of the case. On the facts and in the circumstances of the case and in law, the Id. C.I.T.(A) has erred in deleting the addition of Rs.7,00,000/- made by the A.O. on account of disallowance of claim of loss due to theft, without appreciating the facts of the case. It is, therefore, prayed that the order of the CIT(A) be set aside and that of the assessing officer be restored." 2. Brief facts of the case till the assessment stage regarding 1st issue are noted by Ld. CIT(A) on page 1 & 2 of his order and the relevant para of the order of Ld . CIT(A) is reproduced below: "During the assessment proceedings it was observed that the assessee had purchased polished diamonds from 5 par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24.12.2007 which is discussed by the Assessing Officer at para no. 4.5 of the Assessment Order [Page no. 5]. The Assessing Officer rejected the book results of the assessee u/s. 145(3) of the Act as per his findings given at para no. 5 of the Assessment Order [Page no. 6J. Thus considering the overall facts of the case AO rejected the book result and added sum of Rs. 853798/- on account of lower G P Margin." 3. Being aggrieved, the assessee carried the matter in appeal before Ld. CIT(A) who has deleted the addition and now, the revenue is in appeal before us. 4. The facts regarding the second issue are noted by Ld. CIT(A) on page 7 of his order and the relevant para of his order is reproduced below: "During the year under consideration, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es are not found at the addresses given by assessee & further on the basis of the inquiries conducted through the inspector. However, it is also a fact that assessee has filed copy of acknowledgment of returns of income of all the suppliers which contains complete details viz. PAN, address, ward in which assessed etc. Assessee also pointed out that in two cases notices u/s 133(6) could not be served as there is change in address of the parties. Besides this, I find that payments for purchases are also made through account payee cheques & the A.O has also not brought any evidence on record by making inquiries from the bank that the payments have not gone into the account of suppliers or that the same has been received back by assessee. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of all the suppliers which contains complete details viz. PAN, address, ward in which assessed etc. It was also submitted by the assessee that in two cases, notices u/s 133(6) could not be served as there is change in address of the parties. This is also the finding of Ld. CIT(A) that the payments were made through a/c payee cheques and the A.O. has not brought any evidence on record by making inquiry from the bank that he payments have not gone to the accounts of the suppliers and that the same have been received back by the assessee. This finding is also given by the Ld. CIT(A) that the assessee has made purchases from these parties only and after purchasing diamonds form them, the same have been exported and the quantitative details ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted theft and filed FIR with the police department. Further AO has not brought on record any material to show that such theft has never occurred or for that matter such FIR was fake. Further AO had any doubt about such claim he could have inquired with the authorities concerned who were responsible for finding out the truth of such theft true that initial onus lies on the assessee to prove his claim but once an independent evidences are produced It Is the duty of the AO to verify such claim with regards to its genuineness and that AO could not take his decision merely on surmise or conjecture. Further AO has not brought on record any material which could lead to circumstantial evidence which would rebut the claim even based on human proba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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