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TMI Blog2020 (5) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... -2020 - Shri R.C. Sharma, Accountant Member For the Assessee : None For the Revenue : Shri R.K. Gubgotra (JCIT-DR) ORDER PER: R.C. SHARMA, A.M. This appeal by the assessee is directed against the order dated 28/11/2018 of ld. CIT(A)-28, Mumbai for the A.Y. 2009-10 in the matter of order passed U/s 143(3) r.w.s. 147 of the Income Tax Act, 1961 (in short, the Act). 2. No body has appeared on behalf of the assessee in spite of issue and service of notice. On earlier occasions also appeal was fixed on 30/01/2020 wherein the assessee requested for adjournment and adjournment was granted with observation Last opportunity and appeal was adjourned for hearing on today i.e. on 05/02/2020. However, neither any body ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nishing of particulars is not enough. It was held that mere payment by account payee cheque is not sacrosanct nor can it make a non- genuine transaction genuine. The ratio laid down in the case of Precision Finance i s squarely applicable to the facts and circumstances in the present case of the appellant as well which is commensurate with the information received by the AO from the Investigation Wing. It is a fact that payment is made through banking channels but it is also a fact that on deposit of such money in these so called supplier's bank accounts cash is withdrawn on the same day or immediately the reafter. 6.8 It is further pertinent to note that the veracity Of the transactions through banking channels, is not a Sine-qua- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout actually dealing in goods as per the information provided by the Sales Tax authorities. However, this is also a fact that the sales of the appellant have not been doubted by the AO. Therefore, if sales are not doubted or proved to be not genuine by the AC, then the logical corollary, is that the appellant has definitely made the purchases or elsewhere from what he could have affected the sales. Therefore what is under dispute is the purchases from the various Hawala parties from whom bills have been taken and cheques have been issued. Therefore, the purchases of the appellant from the above parties is not established. Hence the purchases per se by the appellant could not be doubted in their entirety as sales have not been doubted by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that the entire cloth of 1,02,514 metres was sold during the year and therefore, accepted the assessee's contention that the finished goods purchased by the appellant may not be from the parties shown in the accounts but from other parties. In view of this, the Hon'ble ITAT was of the view that only profit margin embedded in such purchases would be subjected to tax. The Hon'ble Tribunal relied on its earlier decision in the case of M/s Saket Steel Traders vs ITO (ITA No. 2801/Ahd/2008 dated 20/05/2008) and also made reference to the decision in the case of Vijaya Protein Vs CIT 58 MD 428 (Ahd). On appeal by the department filed in the case of Bholamath Poly Fab Pvt. Ltd, the Hon'ble High Court dismissed the appeal and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant. 6.14 It is also canvassed that third-party statements are not binding on the appellant. Whereas, this may be so but the fact remains that in the case of the appellant the addition was made, inter-a/in, not merely on third party statement but rather on account of the failure of the appellant to discharge the burden of proof east on it to establish the veracity and the genuineness of i.e. transaction. In effect, the AO made the impugned addition on the basis of inability of the appellant to prove the different aspects of the transaction. 6.15 It is also the say of the AR that comparable instances have not been given by the AO. This is rather a fallacious argument because each assessment in a particular case stands on its own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld in Motipur Sugal Factory (P) Ltd. V. CIT (1974) 95 ITR 401 (Pat.)(HC)(409)(PRO ASSESSE JUDGMENT OTHERWISE ACTUALLY) and in Shanker Rice Co. V. ITO (2000) 72 ITD 139 (Asr.) (SB)(Trib.) (158). By parity of reasoning the same applies to sales tax taw as well in context of determination o f t a x a b l e i n c o m e i n I T L a w . 6.19 In the context of the judicial pronouncements rendered onbehalf of the appellant, it is a trite law that each judicial decision is rendered in the very peculiar and factual matrix of that case and therefore it is not either judicially expedient or prudent to superimpose the facts of the case cited by the AR to the facts of the present case. In this sense, each case is undisputedly unique and stands on di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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