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TMI Blog2016 (11) TMI 1359X X X X Extracts X X X X X X X X Extracts X X X X ..... 06-2007. 2. Rival contentions have been heard and record perused. The ground raised in this appeal has already been decided in favour of the assessee by the Tribunal in assessee's own case i.e. in ITA No.5297/Mum/2014 for A.Y.2005-06, vide order dated 27-07-2016, wherein the Tribunal has observed as under :- 1. These two cross appeal are filed by assessee and Revenue against the order of CIT(A)-I, Thane dated 27.06.2014 for AY 2005-06. The assessee has raised the following Grounds of Appeal: 1. The ld. CIT(A)-1 Thane has partly allowed the appeal instead of allowing in full. 2. He has confirmed the addition of ₹ 19,92,196/-out of the addition done by the AO of ₹ 79,68,784/-. Which is against the principals of law. The Revenue in their Cross Appeal ITA No.5817/M/2014 has raised the following Grounds of Appeal: 1. Whether on the facts and in the circumstances of the case and in law, the ld. CIT(A) was justified in restricting the addition to 25% of ₹ 79,68,784/- made on account of bogus purchases from 03 parties overlooking the fact that the entire purchases were bogus specially when the Ld.CIT(A) has himself held that the genuineness of the purchases h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 38,898/- Total ₹ 79,68,784/- The AO issued notices u/s 133(6) to the above three parties. The notice was replied by all three parties and wherein it was stated that they have made sales to the assessee. The AO observed that those seller have not enclosed any documentary evidence to prove the genuineness of the transaction, thus, aggregate of sale transaction of three parties was disallowed and added back to the total income of assessee in assessment order u/s 143(3) r.w.s. 147 of the Act. Aggrieved by the order of AO, the assessee filed the present appeal before the CIT(A). The Ld. CIT(A) after hearing the contention of the assessee restricted the addition to 25% of the aggregate purchase, thus partly allowed the appeal of the assessee its order dated 27.06.2004. Further aggrieved by the order of CIT(A) sustaining the addition to the extent of 25%, of aggregate of impugned purchases the assessee as well as Revenue filed these two appeals before us as per their Grounds of appeal(s). 3. We have heard ld Authorised Representative (AR) of assessee and ld Departmental Representative (DR) for Revenue and perused the material available on record. AR of the assessee argued that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Harshadkumar Textiles vs. ITO in ITA No. 771/Mum/11 dt. 21.11.12, M/s C. Chotalal & Co. vs. ITO in ITA Nos. 3960 to 3967/Mum/12 dt. 24.09.2013, M/s Permit Textiles vs. ITO in ITA Nos. 3948 to 3953/Mum/12 dt. 01.10.13 & DCIT vs. Smt. Neena M. Lekhi in ITA No. 1608/Mum/13 dt. 14.01.2015. DR for Revenue argued that the assessee was not maintaining stock register and there was no proof of delivery of goods and further relied upon the statement of Mr. Rakesh Kumar Gupta recorded by ITO ward 14(3) u/s131 of the Act. Ld DR for Revenue further argued that when notice u/s133(6) was issued to those parties, they did failed to enclosed any documentary evidences in their support and strongly supported the order of AO and prayed that order of AO be restored and that order passed by ld. CIT(A) for restricting the addition to 25% may be quashed. 4. We have considered the rival contention of the parties and perused the material available on record. The AO made the re-opening of the assessment after recording the satisfaction. The assessee has not assailed the re-opening before us. While framing the assessment, AO inferred that certain parties were found to be none-genuine as they were providi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discrepancy was noticed by AO. The AO and the CIT(A) not disputed the sale of the assessee, the AO has not brought any material on record, which may suggest that the payment made to purchase of goods were again received in cash by assessee. The statements of Bank accounts of parties were not examined. Section 69C provides that if the explanation offered by the assessee about the source of expenditure is not found satisfactory by the AO, the amount may be added to his income. The AO has not recorded the satisfaction that the purchases made by assessee are not genuine. The AO merely relied upon the statement of Mr. Rakesh Kumar Gupta. Mr. Rakesh Kumar Gupta has not referred the name of assessee while making such statement. The assessee has relied upon the decision of M/s Neeta Textiles vs. ITO (supra) wherein similar impugned purchases were also transacted through Mr. Rakesh Kumar Gupta (retracted later on) admitting that sales made to the parties are genuine. The Co-ordinate Bench of this Tribunal while relying the case of M/s Jitendra Harshadkumar & Co (supra) deleted the entire additions of bogus purchases. Further, the Co-ordinate Bench of this Tribunal in Pramit Textiles vs. IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 133A. He has further confirmed that the sales made by the assessee were effected and the consideration was received by cross order cheques. Thus it is clear that there is no material on record to say that the purchases made by the assessee from the said concern were bogus except the 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, we are of the opinion that additions made by the AO deserves to be deleted in its entirety. We decide accordingly." 7.1 On identical facts, and issues ..... X X X X Extracts X X X X X X X X Extracts X X X X
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