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TMI Blog2020 (11) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 60,20,080/- which corresponds to around 2% of the total purchases. The purchases were in a series of transactions, involving an amount of less than ₹ 20,000/-. This is not a case where the books of account of the Assessees were rejected by the AO. The record also establishes that the Assessees obtained 'H' Form concerning these purchases. Assessees have also offered a plausible explanation that such purchases were from smaller traders or mining contractors who would collect residual iron ore spilled on land and then sold for a cheaper price based on on the spot cash payments. Both, the Commissioner (Appeals) and the ITAT have recorded concurrent findings on the issue of cash purchases and it cannot be said that such findings suffer from perversity to warrant interference in this Appeal. Second substantial question of law is also required to be answered against the Revenue and in favour of the Assessee. Additions made under 41(1) - assessee had not filed any confirmation of trade creditors and existence of liabilities - Commissioner (Appeals) and the ITAT deleting the addition made u/s 41(1) - HELD THAT:- Even the reasonings of the Commissioner (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Jitendra Jain, with Mr. H.D. Naik, Advocates for the Respondents. Heard Ms. Amira Razaq, learned Standing Counsel for the Income Tax Department (Revenue) and Mr. Jitendra Jain, along with Mr. H.D. Naik for the Respondents (Assessees). 2. The learned Counsel for the parties agree that both these Appeals can be disposed of by a common Judgment and Order since the issues involved in both these Appeals are identical. 3. The learned Counsel for the parties, however, submit that Tax Appeal No.22/2016 may be treated as a lead Appeal. 4. This Appeal was admitted on 5th March 2019 on the following substantial questions of law. 1. Whether the Income Tax Appellate Tribunal erred in law upholding the disallowance to the extent of ₹ 65,000/- only and deleting the balance addition of ₹ 24,06,566/- u/s 14A ? 2. Whether the Income Tax Appellate Tribunal erred in law upholding the order of Commissioner of Income Tax(A), in disallowing cash purchases without considering that onus is upon the assessee to prove the genuineness thereof? 3. Whether the Income Tax Appellate Tribunal erred in law upholding the order of Commissioner of Income Tax(A), deleting a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come earned by the Assessees during the relevant Assessment Year, was only ₹ 45,371/-. Accordingly, the disallowance in this case could not have exceeded ₹ 45,371/-. It is only because the Assessees voluntarily offered a disallowance to the extent of ₹ 65,000/-, that the Commissioner (Appeals) made a disallowance to the extent of ₹ 65,000/-. Thus, the first substantial question of law is required to be answered against the Revenue and in favour of the Assessees. 10. Ms. Razaq then submits that in this case, the cash purchases to the extent of ₹ 60,28,080/- were made by the Assessees and despite the opportunity, there was no explanation forthcoming as to the details of the parties from whom such cash purchases were made. Mr. Razaq submits that onus to prove the genuineness of cash purchases, lies upon the Assessees and since the same was not discharged despite opportunities, this amount of ₹ 60,28,080/- should have been added to the returned income of the Assessees. She relies on Shree Choudhary Transport Co. vs. Income Tax Officer CA No.7865/2009 decided by SC on 29/7/2020 in support of her contention. 11. Mr. Jain defends the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the rival contentions, again, we find no good ground to interfere with the view taken by the Commissioner (Appeals) as also the ITAT on this issue. In the first place, the ITAT for the Assessment Year 2009-10 in respect of these very Assessees, has confirmed the deletion of a similar nature, relying upon a decision of this Court in Chase Bright Steel Ltd. (supra). Admittedly, this order of the Tribunal was never challenged by the Revenue, and the view taken therein was accepted. Though indeed, the principle of res judicata will not be attracted in such matters, it is clear that in similar circumstances and overlapping facts, the view of the Tribunal was never questioned by the Revenue concerning these very Assessees. Accordingly, there is no case made out to answer this substantial question of law in favour of the Revenue. 20. In any case, even the reasonings of the Commissioner (Appeals) and the ITAT suffer from no perversity whatsoever. The view taken is consistent with the law laid down by this court in Chase Bright Steel Ltd (supra). There is material on record, which also suggests that the confirmations were indeed received and filed by the Assessees though, there are co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue and against the Assessees. 26. Mr. Jain points out that there is sufficient material on record which indicates that the sister- concern was indeed involved in such activities. He points out that in the preceding assessment year, this position had been accepted by the Revenue. He submits that the concurrent findings as to the genuineness recorded by the Commissioner (Appeals) and the ITAT suffer from no perversity and, therefore, warrant no interference. 27. Again, upon consideration of the rival contentions we agree with Mr. Jain that this is not a case of perversity in the matter of record of concurrent findings of fact. 28. The record very clearly indicates that the sister concern M/s. Karishma Goa Mineral Trading Pvt. Ltd. had rendered similar types of services to M/s. Karishma Global Mineral Exports Pvt. Ltd. during the assessment year 2010-11 and the said expenditure was never disallowed by the Revenue during the assessment of M/s. Karishma Global Mineral Exports Pvt. Ltd. even though such assessment was completed under Section 143(3) of the IT Act. Therefore, there was a factual error on the part of the AO in holding that the sisterconcern was never involved ..... X X X X Extracts X X X X X X X X Extracts X X X X
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