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TMI Blog2013 (10) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... to 3953/Mum/2012, ITA Nos. 4012 to 4015 and 4020 to 4021 /Mum/2012 - - - Dated:- 1-10-2013 - Shri H. L. Karwa And Shri N. K. Billaiya,JJ. For the Petitioner : None For the Respondent : Shri G. N. Makwana ORDER Per Bench:- These twelve appeals by the Assessee and the Revenue were heard together and are disposed by this common order, for the sake of convenience and brevity as the issues involved in both Assessee's appeal as well as Revenue's appeal are same. 2. In all the appeals filed by the Assessee for assessment years from 2002-03 to 2007-08 bearing No.3948 to 3953/Mum/2012 the first common ground is to challenge the legality and validity of the order passed u/s. 143(3) r.w.s. 147 of the Act. 3. The common ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merits of the submissions and is bad in law and the same needs to be deleted." 5.2 The Revenue's ground which is directly related to the outcome of Assessee's appeal reads as reads as under :- "1. The ld. CIT(A) has erred in law as well as fact by not sustaining addition u/s. 69 after having accepted the finding in principle that there was involvement of cash to have purchase made from undisclosed/unverifiable parties and purchases from the concerns of Shri Rakesh Gupta and family was only accommodation entries and not by actual purchase. 2. The ld. CIT(A) erred in law as well as fact by not sustaining any addition on the peak value of cash involved in making purchase from the so called unidentifiable parties u/s. 69." The departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e filed a confirmation and an affidavit of Shri Rakeshkumar Gupta. The Assessee also filed complete details in the form of invoice, challans, quantitative details of goods. The Assessing Officer discarded all these evidences filed by the Assessee relying upon the statement of Shri Rakeshkumar Gupta and went on to make an addition on account of entire amount of purchases made from Shri Rakeshkumar Gupta and his family members. The Assessee carried the matter before the CIT(A) and reiterated what had been submitted before AO. After considering the facts and statement made by assessee, the CIT(A) relied upon the decision of his peers in respect of some other parties who have also made purchases from the concerns of Shri Rakeshkumar Gupta and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... figures may differ. The Tribunal had given its finding at para-8 on page-5 of its order which reads as under :- "8. We have carefully considered the rival submissions in the light of material placed before us. It will be relevant to reproduce the letter received by the AO from Shri Rakesh Kumar Gupta, which is also reproduced in the assessment order: "1 am in receipt of your summons u/s. 131 of the I.T.Act. 1961 in the case of M/s. Jitendra Harshad Kumar Textile Pvt. Ltd. asking me to attend before your goodself with the details of my account with the said M/s. Jitendra Harshad Kumar Textile Pvt. Ltd. for A.Y.2002-03 2007-08. As you are aware that my assessing officer had recorded alleged statement u/s. 133A and 131 of the I.T.Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he general statement recorded by the Department in the case of Shri Rakesh Kumar Gupta, which was later on retracted. In absence of any material brought on record against the submissions made by Shri Rakesh Kumar Gupta in his letter dated 20/12/2009 filed before the AO of the assessee the addition, if any, made in the case of the assessee will be based on presumption only and it cannot be sustained in the eyes of law. As against that assessee has submitted various evidences to show that the actual delivery of the goods was received by the assessee from the said party which has not been discarded by the AO. The addition sustained by Ld. CIT(A) is also on presumption basis. Therefore, keeping in view the facts and circumstances of the case, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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