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TMI Blog2022 (3) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... served but not responded by the supplier, no adverse inference could be drawn on the assessee. We also find that absolutely no adverse inference has been drawn on the lower authorities on the documents furnished by the assessee. Hence, no addition could be made in the peculiar facts and circumstances of the instant case in the light of decision of the hon'ble jurisdictional High Court in the case of Pr. CIT v. Vaman International P. Ltd. [ 2020 (2) TMI 464 - BOMBAY HIGH COURT ] Thus we hold that no addition could be made on account of alleged ingenuine purchases in the peculiar facts and circumstances of the instant case. Accordingly, the grounds raised by the assessee on the merits are allowed for both the years. - Decided in favour of assessee. - I. T. A. Nos. 5204, 5205, 5206/Mum/2018 - - - Dated:- 25-11-2021 - M. Balaganesh (Accountant Member) And Amarjit Singh (Judicial Member) For the Assessee : G. P. Mehta For the Department : Prasoon Kabra ORDER M. BALAGANESH (ACCOUNTANT MEMBER). - 1. This appeal in I. T. A. Nos. 5204/Mum/2018, 5205/Mum/2018 and 5206/Mum/2018 for the assessment years 2009-10 to 2011-12 arise out of the order by the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the assessee within the prescribed time after issuance of notice under section 148 of the Act. We find that this ground was also raised by the assessee before the learned Commissioner of Income-tax (Appeals). We find that the learned Commissioner of Income-tax (Appeals) had merely placed reliance on the general statement recorded by the learned Assessing Officer that notice under section 143(2) of the Act was issued and served on the assessee. But from the perusal of the assessment order, we find that the learned Assessing Officer had not mentioned the date of issuance of 143(2) notice and date of service of the same. This fact is further confirmed by the learned Assessing Officer vide his letter dated November 20, 2019 addressed to the senior Departmental representative of Income-tax Appellate Tribunal SMC Bench. Since, this is a jurisdictional defect, the arguments advanced by the learned Departmental representative that it becomes curable under section 292BB of the Act as assessee had participated in the proceedings does not hold any water. In view of the decision of the hon'ble Supreme Court in the case of CIT v. Laxman Das Khandelwal [2019] 417 ITR 325 (SC) ; [2019] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d been duly served on the concerned supplier and the said supplier had chosen not to respond to the statutory notice, the learned Assessing Officer was requested by the assessee to enforce the attendance of the said supplier by issuing statutory notice in the manner known to law. The assessee furnished the detailed statement showing purchase of goods from M/s. Dimple Enterprises along with copy of relevant bills, delivery challans and disposal of the said goods in his business. The assessee also pointed out that the payments were made by account payee cheques. The bank statement of the assessee showing payments to the said supplier was also submitted vide letter dated October 19, 2015. The assessee also pointed out that it had also taken sufficient steps with the supplier to furnish the requisite details but they had remained unresponded by the supplier. The learned Assessing Officer however, disregarded all the contentions of the assessee and merely placed reliance on the information received from the Sales Tax Department that since the said supplier continues to remain as a tainted dealer in the website of Sales Tax Department, Government of Maharashtra, the assessee had not conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition could be made in the peculiar facts and circumstances of the instant case in the light of decision of the hon'ble jurisdictional High Court in the case of Pr. CIT v. Vaman International P. Ltd. [2020] 422 ITR 520 (Bom), in Income-tax Appeal No. 1946 of 2017 dated January 29, 2020 wherein the relevant operative portion of the said order is reproduced hereunder (page 525) : 16. The first appellate authority while deleting the addition made by the Assessing Officer under section 69C held that the Assessing Officer did not doubt the sales and stock records maintained by the assessee. By submitting confirmation letters, copies of invoices, bank statement, payment order, payment by account payee cheques etc., the assessee had proved that sale and purchases had taken place. By highlighting the fact that all the payments against the purchases were made through banking channel by way of account payee cheques, the first appellate authority held that source of expenditure was fully established by the assessee beyond any doubt. He has further recorded that during appellate proceedings the assessee had furnished complete quantitative details of the items of goods purchased du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. If the Assessing Officer doubted the genuineness of this said purchases, it was incumbent upon him to cause further inquiries in the matter to ascertain the genuineness or otherwise of the transactions. Without causing any further enquires in respect of the said purchases, the Assessing Officer cannot make the addition under section 69C of the Act by merely relying on information obtained from the Sales Tax Department, the statement/affidavit of third parties, Shri Pradeep Vyas and Ketan Shah without the assessee being afforded any opportunity of cross-examination of that persons and for non-response to notices under section 133(6) of the Act. 4.4.3 In the factual matrix of the case, where the Assessing Officer failed to cause any enquiry to be made to establish his suspicions that the said purchases are bogus, the assessee has brought on record documentary evidence to establish the genuineness of the purchase transactions, the action of the Assessing Officer in ignoring these evidence cannot be accepted. Further, the hon'ble Bombay High Court in the case of CIT v. Ashish International (I. T. A. No. 4299 of 2009) has held that the genuineness of the statements relied up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The Tribunal has also held that if the Assessing Officer had doubted the genuineness of the purchases, it was incumbent upon the Assessing Officer to have caused further enquiries in the matter to ascertain genuineness or otherwise of the transaction and to have given an opportunity to the assessee to examine/cross- examine those two parties vis-a-vis the statements made by them before the Sales Tax Department. Without causing such further enquiries in respect of the purchases, it was not open to the Assessing Officer to make the addition under section 69C of the Act. 18. We are in agreement with the view expressed by the Tribunal. In fact, the Tribunal has only affirmed the finding of the first appellate authority. Thus, there is concurrent finding of fact by the two lower appellate authorities. 19. This court in the case of CIT v. Nikunj Eximp Enterprises Pvt. Ltd. [2015] 372 ITR 619 (Bom) wherein an identical fact situation arose did not interfere with the order passed by the Tribunal and held that no substantial question of law arose from such order. It was held that merely because the suppliers had not appeared before the Assessing Officer, no conclusion could be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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