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TMI Blog2016 (11) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... owing substantial questions of law: "1) Whether in the facts and circumstances of the case the ITAT has not acted perversely in deleting the additions without apprechating the proviso to Section 69C and CBDT's circular dated 23.12.1998? 2) Whether in the facts and circumstances of the case, the ITAT has not acted perversely in relying the books of accounts when the same were rejected rejected by invoking provisions of section 145(3) of the Act as the assessee was unable to explain the purchases and the day to day quantitative tally of goods consumed was also not maintained? 3) Whether the ITAT was justified in upholding the action of CIT (A) in directing to adjust the MAT credit before charging the interest u/s 234B and 234C of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions of High Courts in case of bogus purchases and contended that the judgment of Vijay Proteins Ltd. Vs. Commissioner of Income Tax, Special Leave to Appeal (C) No.8956/2015 decided on 06.04.2015 whereby the Supreme Court has dismissed the SLP and confirmed the order dated 09.12.2014 passed by the Gujarat High Court and other decisions of the High Court of Gujarat in the case of Sanjay Oilcake Industries Vs. Commissioner of Income Tax (2009) 316 ITR 274 (Guj) and N.K. Industries Ltd. Vs. Dy. C.I.T., Tax Appeal No.240/2003 decided on 20.06.2016. He has also relied upon Commissioner of Income Tax Vs. Precision Finance Pvt. Ltd., reported in (1994) 208 ITR 465 (Cal.) wherein in paragraph 5 and 6, the Court observed as under:- "5. It appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. Mere furnishing of the particulars is not enough. The enquiry of the Income-tax Officer revealed that either the assessee was not traceable or there was no such file and, accordingly, the first ingredient as to the identity of the creditors had not been established. If the identity of the creditors had not been established, consequently the question of establishment of the genuineness of the transactions or the creditworthiness of the creditors did not and could not arise. The Tribunal did not apply its mind to the facts of this particular case and proceeded on the footing that since the transactions were through the bank account, accordingly, it is to he presumed that the transactions were genuine. It was not for the Income-tax O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h as at the instance of the assessee, notices were issued under Section 131 and the notices came back duly unserved, the Revenue again desired the assessee appellant to produce the parties for verification. However, though the appellant was in 14 touch with the respective parties as confirmation was filed but was unable to produce the parties and only after verification it could be known whether the parties had creditworthiness or genuineness of the transaction. On the contrary, the evidence available with the investigation wing of the Revenue and which was passed on to the AO clearly was brought on record that either the parties are not existing on the given addresses or if found, they denied of actual purchase or sale of the precious ston ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed firm. On enquiries conducted by the authorities after due notice to the assessed it was found that there was no such concern called M/s Kalpana Enterprises at either 71, Canning Street, Calcutta or 479, Bartan Market, Sadar Bazar, Delhi. Additionally Chedi Lal opened the bank account with the introduction of Satya Pal Jain and the amounts were withdrawn. If the purchases were really effected from M/s Kalpana Enterprises it is not understood as to how some other person namely Inder Sain Jain (HUF) accepted that the materials were supplied by it. The question before the Tribunal was not whether purchases were made from another concern. What was under consideration was whether the purchases were made from M/s Kalpana Enterprises as was cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. 7. Before considering the matter, it will not be out of place to mention here that question which is posed for our consideration is whether the purchases which has been done from Vinayak Overseas is genuine or not. The Assessing Officer while observing at page 12 referred hereinabove and which was already considered by the CIT (A) has confirmed the finding and Vinayak Overseas has specifically contended that they were not transfer by Vinayak Overseas and they were absconding. The Tribunal only on the statement of M.P. Sharma who was power of attorney holder of Vinayak Overseas has given the finding. In our view, the finding is perverse. The view taken by the Tribunal is required to be reversed. 8. Apart from that merely voucher of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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