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TMI Blog2018 (3) TMI 1344X X X X Extracts X X X X X X X X Extracts X X X X ..... r, there is no power or authority in favour of Shri Rohan Sogani as there is no authority letter filed on record. We further note that on the last date of hearing, the hearing of the appeal was adjourned on the request of the assessee and last opportunity was granted by this Bench. Accordingly, in view of these facts and circumstances, the request for adjournment was rejected by the Bench and the matter was taken up for hearing and adjudication ex parte. The revenue has raised the following ground :- " 1. Whether on the facts and in the circumstances of the case and in law, the ld. CIT (Appeals) has erred in cancelling the penalty of Rs. 26,00,000/- imposed u/w 271(1)(c) in view of judgement of Hon'ble ITAT in ITA No. 504/JP/2013 dated 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, we deal with this issue while deciding the cross objection. Once, the books of accounts are rejected by the AO the only course of action left to the AO is to assess the income of the assessee on the basis of best judgment and GP rate is considered as proper and reasonable basis and guidance for the best judgment. Once, the books result are rejected the Assessing Officer cannot proceed to make an addition to the income offered by the assessee as per books result. However, the AO in the case of the assessee instead of applying the GP rate made on addition@ 25% of the purchases to the book results. This act of the Assessing officer itself contradicts the decision of rejecting the books of accounts and books result. The Tribunal in assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment to the trade creditors shown in the balance-sheet, the assessee is definitely required to prima facie prove the identity of the trade creditors as well as the genuineness of the transaction. In this case, admittedly the assessee has neither been able to disclose the complete addresses of the trade creditors nor is able to give the complete addresses of the consignors nor the name has been mentioned on the challan forms, so the verification of the same by the Assessing Officer became totally impracticable on account of lack of this complete information supplied by the assessee. It means that the assessee failed in establishing the genuineness of the so called trade creditors appearing in its books of account. We are further of the opi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a finding of facts that the assessee inflated the purchases upto 25% and therefore, it was not a case of non verification of the purchase and rejection of books of accounts but the fact was established in the investigation that the assessee inflated the purchase price and accordingly the addition of 25% being inflated purchases was made and upheld by the Tribunal which was again upheld by the Hon'ble High Court. On the contrary in the case of the assessee the AO not given any finding of inflated purchases by the assessee but doubted the very transaction of purchases due to non production of these parties before the AO. The AO has not given the finding that the prices of the goods was inflated by the assessee but the AO doubted the genuin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... summons to the parties from whom the assessee made the purchases however, there was no response and no compliance of the notice issued by the AO to these parties. Thus, the Assessing officer has rightly pointed out that the sale to the extent of more than 60% of the assessee was not verifiable. Therefore, in these facts and circumstances of the case when the sales of the assessee to the extent of more than 60% is not verifiable due to the failure of the assessee to produce the relevant evidence and the supplier then the book results of the assessee would not reflected true picture and consequently it was a sufficient and proper ground for rejection of books of accounts by the AO. The ld. CIT(A) has dealt with this issue in para 4.3 as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limited purposes computing the income by applying the average GP rate of the past history at minimum 3 years. Needless to say that the assessee be given an appropriate opportunity of hearing. As regards the rejection of books of accounts following the earlier decision of the Tribunal cited (supra), we uphold the action of the AO." Thus it is clear that the issue of addition made by the AO in respect of unverifiable purchases after rejection of books has been set aside to the record of the AO for computing the income of the assessee by applying average GP rate of past history for a minimum 3 years. Since the matter in quantum appeal has been set aside to the record of the AO, therefore, the present penalty would not survive and accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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