9911796707
TMI Blog2017 (9) TMI 1581X X X X Extracts X X X X X X X X Extracts X X X X ..... d circumstances in all the three years under consideration are same, I therefore heard all the appeals together and now deciding the same through this consolidated order. 4. The facts of the case are that the assessee filed return of income for A.Y.2009-10, by declaring total income of Rs. 2,10,862/- on 26.09.2009. The same was processed u/s 143(1) of the Act. The case of the assessee was reopened for the reason that an intimation vide letter bearing No.DGIT (lnv.)/Corr.field/2013-14 dated 26/12/2013 has circulated a list of beneficiaries who have obtained accommodation entries for claiming bogus expenditure from parties who have issued bogus bills without delivery of goods as per investigation conducted by the Maharashtra Sales Tax Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. As per section 101, 102 and 106 of the Indian Act, the onus lies upon the assessee to prove all the expenses including purchases to the satisfaction of the AO, which was not discharged by the assessee. (ii) that mere filing of bills in support of purchases and payment through account payee cheque cannot be conclusive in a case where genuineness of transaction is in doubt. (iii) that payment by account payee cheque is not sacrosanct and is not sufficient to establish the genuineness of the purchase. Reliance was placed on Kachawala Gems vs. Jt.CIT (2007) 288 ITR 10 (SC). (iv) that the undisputed fact is that the purchases claimed to have been made from these parties remained unverified. (v) that the genuineness of the transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at their addresses when verification letters u/s133(6) of the Act were issued. 7. In view of the above discussion, it was held by AO that the assessee has failed to prove the genuineness of purchases from these parties and purchases from these parties are bogus and non-genuine. However, as the assessee has been able to correlate the purchases of material with the allocation of goods and the sales thereof, it was assumed that the assessee has purchased these goods from the grey market and has introduced the same in his regular stock by obtaining bogus bills / accommodation bills from these parties. Any person indulging in the practice of purchasing goods from the grey market and obtaining bogus bills of some other parties would do so gettin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t provide any information regarding the same to the assessee and also failed to examine assessee in this behalf and allow cross examination of the inspector who went to verify the details and also cross examination of the Sales Tax Authorities on whose information the learned assessing officer had relied in reopening the assessment. The AO failed to appreciate the evidence produced by the assessee as regards the receipt of goods, transportation receipt etc and was not justified in merely relying on the information received from the sales tax department in framing the impugned assessment u/s 143(3) r.w.s 147 of the Act. Therefore, the assessment orders dt. 29/02/2016 is bad in law and may be deleted. Learned AR further submitted that since t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r vs. DCIT (2002) 256 ITR 134 (Bom) 12. Reliance was placed on the decision of CIT vs. Nikunj Eximp Enterprises Pvt. Ltd. ITA "No. 5604 of 2010, Bombay High Court, order dt. 17/12-2012, wherein the entire additions on account of bogus purchases were deleted. Further reliance was placed on the decision of Babulal C. Borana vs. ITO (2006) 282 ITR 25T (Bom.) (HC), wherein the entire additions were deleted on the ground that the third parties to whom sales were made, were found to have been genuine and if sales were genuine, then purchase must be genuine and transaction could not be said to be hawala transactions. 13. As per learned AR in the case of Ramesh Kumar & Co. vs ACIT (ITAT) in 1TA no.2959/Mum/2014 (A.Y.2010-11) dated 28.11.2014 Mumb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has already shown high GP so, sale of such goods which are as under:- Assessment Year GP Rate 2009-10 11.72% 2010-11 10.43% 2011-12 11.89% 15. I had also deliberated on the judicial pronouncements referred by lower authorities in their respective orders as well as cited by learned AR and DR during the course of hearing before us in the context of factual matrix of the case. From the record, I found that assessee has shown good GP during the years under consideration. Keeping in view the normal GP being shown by the assessee engaged in the similar business, I found that assessee had shown reasonable good GP. Therefore, considering the totality of facts and circumstances of the case, I direct the AO to restrict the addition to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
