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TMI Blog2014 (2) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... required to be gathered instead of harping upon a single word or sentence – thus, there was no mistake, what to say an apparent mistake in the order of the Tribunal – Decided against Assessee. - M.A. No.263/Ahd/2010 & 52/Ahd/2012 (in ITA Nos. 1208/Ahd/2010 & 966/Ahd/2007) - - - Dated:- 13-8-2013 - Shri Mukul Kr. Shrawat And Shri A. Mohan Alankamony,JJ. For the Petitioner : Shri Dinesh Singh Sr.D.R For the Respondent : Shri Tej Shah ORDER Per Shri Mukul Kr. Shrawat, Judicial Member :- At the outset, we hereby hold that MA No.52/Ahd/2012 filed on 12.3.2012 (arising from ITA No.966/Ahd/2007 - A.Y. 2003-04 order dated 30/04/2008) do not survive, rather redundant in nature; because through that order of the Tribunal the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree parties for verification to prove the genuineness of the transactions in respect of purchases of polished gems ". The Hon 'ble Tribunal further noted, "in view of these facts and circumstances we fairly feel that one more opportunity be given to the assessee to prove his case and to produce4 the parties before the Assessing Officer for examination ". 1.1. From the above order it is clear that the failure of assessee was to produce only 3 parties for verification. However, while deciding the appeal entire purchases from 5 parties have been treated as bogus because of non- production of parties from whom purchase were made. Therefore, to this extent there is a mistake apparent on record of disallowance of purchases from all the 5 parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence act that the liability to produce the evidence is on the person who relies on such evidence. The evidence on which the assessee relies has all been produced. If the Assessing Officer insists examination of the parties, such parties become the evidence of the Assessing Officer's and not the Assessee's. Therefore, the guarded finding by the Hon'ble Tribunal in the Original Order was to direct the assessee "to prove his case and to produce the parties before the Assessing Officer for examination". Therefore, if by either of the directions the genuineness of the purchases is established, the addition requires to be deleted. Since the remand by the Hon'ble Tribunal was not only "to produce the parties before the Assessing Officer" but wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had gone in appeal before the Tribunal. The respected ITAT 'C' Bench in ITA No.966/Ahd/2007 (A.Y. 2003-04) vide order dated 30.4.2008 had observed that the notices u/s. 133(6) were issued by the AO but no satisfactory compliance was made. Letters and notices u/s. 133A and u/s. 131 were issued to M/s. Paras Gems, M/s. Mayur Gems, M/s. Rishi Diamonds, M/s. Veni Gems and Ruby Impex; but genuineness could not be established. With these observations the Tribunal has concluded as follows: "The assessee has failed to produce these three parties for verification to prove the genuineness of the transaction in respect of purchases of polished gems. Merely payment through banking channel is not sufficient but at the same time the explicit sale of di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO was not satisfied with the documentary evidences filed by the assessee in support of the genuineness of the purchases. However, the learned CIT(A) deleted the addition. The Tribunal in the departmental, appeal in ITA No.966/Ahd/2007 (supra) restored the matter back to the file of the AO for reconsideration because the Tribunal was of the view that the order of the learned CIT(A) is perverse because the assessee is not able to prove the genuineness c the transactions. The Tribunal also noted that the assessee has failed to produce these parties for verification to prove the genuineness of the transaction in respect of the purchases of polished gems. The Tribunal also did not accept the explanation of the assessee that payment through b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee if accepted would enlarge the scope of the enquiry as is provided by the Tribunal which is not permissible under the law. The learned Counsel for the assessee was, therefore, not justified in contending to make enquiry through other method not covered by the direction of the Tribunal. Application of the net profit rate on rejection of the purchases or verifying the same purchases through documentary evidence without production of the parties for examination before the AO would amount to disobeying the earlier direction of the Tribunal assigned in the matter in issue. Therefore, the submission of the learned Counsel for the assessee now raised though seems to be attractive but in view of the peculiar facts and circumstances of the case no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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