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TMI Blog2014 (12) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... ng which would show that the relief u/s 80HHC was erroneous – thus, the disallowances which has been confirmed by the CIT(A) cannot be uphold - Decided in favour of assessee. Addition of bogus bills/purchases made for construction – Held that:- The AO has not only relied upon the admission of the Director, Mr. Viren Ahuja at the time of statement u/s 132(4), but also has analyzed the nature of transaction and carried out inquiry to find out that the claim of purchases made for construction were bogus - once the evidences and materials are indicating the non-genuineness of the expenditure, the onus is heavily upon the assessee to prove the contrary on the basis of concrete material or evidence - onus has not been discharged by the assessee at all and not only, that it has been categorically admitted by the assessee when it was confronted during the course of search that, the payments relating to purchases are bogus – there was no merits in the contention raised by the assessee and the order of the CIT(A) is upheld – Decided against assessee. - ITA Nos. 2200 & 2201/Mum/2013 - - - Dated:- 22-12-2014 - Shri N. K. Billaiya And Shri Amit Shukla,JJ. For the Petitioner : Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and other expenses incurred on car. ii) in not holding that the disallowance of ₹ 1,04,462/- on account of personal usage element estimated at 10% of total amount of depreciation and other expenses incurred on car is bad in law as the addition is not based on the material found during the course of search and that it pertained to non-abated assessment year. 8) The learned CIT(A) has erred in law and in facts in not giving the credit for taxes paid by/ deducted for the appellant while computing the tax liability of the appellant. 9) The learned CIT(A) has erred in law and in facts in confirming the interest levied by the Assessing Officer u/s. 234A, 234B and 234C of the Act. 3. At the outset, the learned counsel submitted that the ground no. 1 to 4 are general in nature hence same are not pressed and therefore, ground no. 1 to 4 are not adjudicated upon and treated as dismissed. 4. Regarding issues raised, in ground no. 5, 6 and 7, learned counsel submitted that in this case, original return of income was filed on 27.11.2006 and the said return of income had attained finality. Search and Seizure action u/s 132(1) was carried out on 31.10.2009 and therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce it is held that the assessment finalized on 29.12.2000 has attained finality, then the deduction allowed under section 80HHC of the Income-tax Act as well as the loss computed under the assessment dated 29.12.2000 would attain finality. In such a case, the AO while passing the independent assessment order under section 153A read with section 143(3) of the I.T. Act could not have disturbed the assessment/ reassessment order which has attained finality, unless the materials gathered in the course of the proceedings under Section 153A of the Income-tax Act establish that the reliefs granted under the finalised assessment/reassessment were contrary to the facts unearthed during the course of 153 A proceedings. In the present case, there is nothing on record to suggest that any material was unearthed during the search or during the 1S3A proceeding which would show that the relief under Section 80HHC was erroneous. In such a case, the A.O. while passing the assessment order under section 153A read with Section 143(3) could not have disturbed the assessment order finalized on 29.12.2000 relating to Section 80 HHC deduction and consequently the C.I.T. could not have invoked jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and other expenses incurred on car. 7. The learned CIT(A) has erred in law and in facts in not giving the credit for taxes paid by/deducted for the appellant while computing the tax liability of the appellant. 8. The learned CIT(A) has erred in law and in facts in confirming the interest levied by the Assessing Officer u/s. 234A and 234B of the Act. 11. At the outset, learned counsel submitted that ground no. 1 to 4 are not pressed and accordingly the same is dismissed as not pressed. 12. In ground no. 5 the assessee has challenged the addition of ₹ 27,80,33,410/- on account of alleged bogus bills/purchases made for construction. 13. The brief facts qua the issue are that, during the course of the search and seizure action carried out in the case of Bermaco Group of cases on 31.10.2009, the Director Shri Viren Ahuja, who has a key person of the group was confronted with the various incriminating documents and statement was recorded on oath u/s 132(4). He was required to explain the expenses claimed by the assessee and also the addresses of the parties from whom purchases were made. He accepted that purchases claimed by the assessee company from the three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, unequivocally admitted that the expenditure was not genuine. In the statement recorded dated 01.11.2009/02.11.2009, Shri Viren Ahuja further admitted the following: Q.21 I am showing the bills of Aakruti Engineers Contractors amounting to ₹ 9,00,25,170/- and Riddhi Siddhi Marketing amounting to ₹ 10,48,30,512/- and Model Industries amounting to ₹ 1,71,77,728/-. totally amounting to ₹ 21,20,33,410/- pertaining to FY.2008-09 for Bermaco Industries Ltd. Please produce the supporting evidences and prove the genuineness of the purchases. Ans. On seeing the bills, I do think, the same not to be in order and confirm that the purchases are bogus for the F Y. 2008-09 for Bermaco Industries Ltd. The cash so generated have been partly used for making investment in some assets and other unaccounted payments. Q.22 How do you know the above parties? Ans. I know them through an intermediary. I have given cheque to them against the bills given by them. Later on, I have got back the cash from them, after paying a commission of 5.5. %. Q.23 What did you do with the above cash? Ans. The cash so generated have been partly for making investments in so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates and sequence of events it cannot be held that how assessee can carry out renovation in such a building. In any case the profit earned by the assessee can be said to be have spent on renovation. 15. On the other hand, Ld. DR strongly relied upon the order of the AO as well as Ld.CIT(A). 16. After considering the rival submissions and also on the perusal of the findings of the AO as well as Ld.CIT(A), we find that the assessing officer has not only relied upon the admission of the Director, Mr. Viren Ahuja at the time of statement u/s 132(4), but also has analyzed the nature of transaction and carried out inquiry to find out that the claim of purchases made for construction were bogus. Once the evidences and materials are indicating the non genuineness of the expenditure, the onus is heavily upon the assessee to prove the contrary on the basis of concrete material or evidence. Here in this case onus has not been discharged by the assessee at all and not only, that it has been categorically admitted by the assessee when it was confronted during the course of search that, the payments relating to purchases are bogus. On these facts, we do not find any merits in the contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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