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TMI Blog2019 (2) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... in judgment also cannot be taken up as mistake apparent from record liable for rectification u/s. 254(2). Accordingly, in the background of aforesaid discussion, we find that the issue raised in the miscellaneous application cannot be a subject matter of rectification of mistake apparent from record. - M.A. Nos. 446, 447 & 448/Mum/2018 (Arising out of ITA Nos. 4086, 4087 & 4088/Mum/2016) - - - Dated:- 23-1-2019 - Shri Shamim Yahya, AM And Shri Amarjit Singh, JM For the Appellant : Shri A. K. Sharma, Ms. Taneksha Sharma For the Respondent : Shri Chaitanya Anjaria ORDER U/S. 254(2) OF THE INCOME TAX ACT, 1961 PER SHAMIM YAHYA, A. M.: By way of these miscellaneous applications the assessee seeks rectification of mistake apparent from the record in the common order of this tribunal in ITA Nos.4086, 4087 4088/Mum/2016 for assessment years 2009-10, 2010-11 and 2011-12 vide order dated 03.04.2018. 2. In these appeals by the assessee, the Tribunal has restricted the disallowance for bogus purchases from 25% done by the ld. CIT(A) to 12.5%. 3. The first submission of the ld. Counsel of the assessee is that the assessee has raised the following issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee is not satisfied by the order of the Tribunal, it cannot lead to an inference that there is a mistake apparent from the record. 9. Further, the ld. Counsel of the assessee has challenged the tribunal s finding that the assessee was dealing in the grey market by a submission that all the payments were made by account payee cheques. In this regard, we note that on consideration of the overall facts and circumstances of the case, the tribunal had come to the decision that the assessee was engaged into dealing into the grey market. Further, the assessee has challenged the ITAT s reference to the matter that the A.O. has received information from the Sales Tax Department regarding the bogus purchase being from hawala traders. We find that there is no infirmity in the Tribunal s reference in this regard, as para 7 of the assessment order duly mentions the reference to the list of the hawala parties published by the Sales Tax Department. In our considered opinion, there is no mistake apparent from the record in this regard. 10. The ld. Counsel of the assessee has further reiterated to the fact that the ld. CIT(A) has observed that there was no in-depth enquiry by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cogent evidence of purchases, in light of the overwhelming evidence the revenue authorities cannot put upon blinkers and accept these purchases as genuine. This proposition is duly supported by Hon ble Apex Court decision in the case of Sumati Dayal 214 ITR 801 and Durga Prasad More 82 ITR 540. In the present case the assessee wants that the unassailable fact that the suppliers are non-existent and thus bogus should be ignored and only the documents being produced should be considered. This proposition is totally unsustainable in light of above apex court decisions. 19. In these circumstances learned departmental representative has referred to Hon ble Gujarat High Court decision in the case of Appeal No. 240 of 2003 in the case of N K Industries vs Dy CIT, order dated 20.06.2016, wherein hundred percent of the bogus purchases was held to be added in the hands of the assessee and tribunals restriction of the addition to 25% of the bogus purchases was set aside. It was expounded that when purchase bills have been found to be bogus 100% disallowance was required. The special leave petition against this order along with others has been dismissed by the Hon ble Apex Court vide ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the reference to the Hon'ble jurisdictional High Court in the case of M/s. Ashish International (supra), we find that the same was delivered on the facts of that case. In that case, the Hon'ble jurisdictional High Court has noted that the appellate authority has sought a remand report and even at that stage the genuineness of the statement has not been established by allowing the cross examination of the person whose statement was relied upon by the Revenue. We find that in the present case, we have not raised any such issue. Rather, we have found that the assessee wants to cross examine his own suppliers whom he has not been able to produce. Furthermore, the addition has not been made solely on the basis of the statement. Comprehensive enquiry has been done and the assessee has totally failed in discharging the onus of proving that the purchase bills produced were genuine and not bogus. Furthermore, the decision of Hon'ble jurisdictional High Court in the case of M/s. Golani Brothers (supra) was also rendered on the facts of the particular case, wherein the Hon ble High Court has found that there was no serious infirmity or perversity in the order of the Tribunal. He ..... X X X X Extracts X X X X X X X X Extracts X X X X
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