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TMI Blog2023 (4) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... e peculiar facts and circumstances of the case and the relevant provisions of law as applicable to the issue in hand, hence we are inclined not to interfere in the decision of the Commissioner in holding the amount as taxable u/s. 56 of the Act under the head other sources . As we have already upheld the addition hence not dwelling into the controversy raised by the Ld. DR to the effects that the ld. commissioner wrongly held that provisions of section 69A of the Act are not applicable. Consequently, Ground No. 1 stands dismissed. Bogus purchases - AO on the basis of the statement made by the third party made this addition - HELD THAT:- The statement of third party was not confronted to person who supplied cement and steel to the Assessee, therefore, adverse statement by third party could not be held against the Assessee. Commissioner further held that it is undisputed that the material was actually used as per the certificate of the Architect and the quantity of purchase and consumption of steel in the projects has not been found to be incorrect or assailed by the Revenue. In these circumstances, it cannot be held that the purchases were bogus or unexplained. Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to contradict the findings of the ld. Commissioner in deleting the addition under consideration. Consequently, ground No. 4 raised by the Revenue Department stands dismissed. Disallowance on account of interest free advance given by the Assessee - HELD THAT:-We observe that the ld. Commissioner by considering the peculiar facts and circumstances and the submissions made by the Assessee and the assessment order, came to the conclusion that the interest free advance given pertains to earlier years. The interest expenditure of the Assessee in this year relates to interest on bank loan for vehicle and other interest which have no direct nexus with the advances given earlier. Therefore, the addition made is unfounded and is deleted. Unexplained loan credit - HELD THAT:- Commissioner by considering the peculiar facts and circumstances that the amount was not borrowed during the year under consideration, but only the repayment was made during the year, as the credit does not pertain to the previous year, no addition can be made in this year. The Assessee has discharged its primary onus of establishing the transaction. No defect is found in the evidences filed by the Assessee. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/- respectively on account of cash receipts u/s. 69 of the Act and bogus purchase expenditure. 4. The Assessee being aggrieved, challenged the assessment order and the additions referred to above before the ld. Commissioner, who vide impugned order allowed the appeal of the Assessee partly and affirmed the additions of Rs.1,04,88,750/- and Rs.8,64,000/-. The Assessee being aggrieved is in appeal before and raised following grounds of appeal: 1. On the facts and circumstances of case and in law, the Commissioner of Income Tax (Appeal) erred in confirming the addition of Rs. 1,04,88,750/- as income from other sources instead of Income of Rs. 12,72,018/- returned by the assessee as business income. 2. On the facts and circumstances of case and in law, the addition of Rs.8,60,000/- made by the assessing officer on account of alleged bogus purchase is beyond the jurisdiction of provisions of section 153A of Income Tax 1961 and Commissioner of Income Tax (Appeal) erred in not holding so. 3. On the facts and circumstances of case and in law, the assessment order passed by the assessing officer u/s 143(3) r.w.s. 153A is illegal and without jurisdiction and Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant group. The appellants, when confronted with the contents of these documents, admitted unaccounted income amounting in all to Rs.4,78,05,701/-, including the amount of Rs.2,99,05,701/- relating to the appellant company for various assessment years. The amount of Rs. 14,00,000/- presently in dispute is part of the undisclosed income of Rs.2,99,05,701/-, admittedly belonging to the appellant company. There is no dispute as to the nature or quantum of the amounts. The only dispute is regarding the year of taxability wherein the appellant has offered the amounts to tax in the respective years as per the POC method whereas the revenue has taxed the amounts u/s 69A in the respective years of receipt. The year-wise comparative figures have been tabulated in the submissions filed by Ld. AR reproduced above. 5.3 We have given thoughtful consideration to the peculiar facts and circumstances of the case. The Ld. DR supported the assessment order and claimed that that the ld. commissioner wrongly held that provisions of section 69A of the Act are not applicable. We observe that there is no dispute qua nature or quantum of the amount under consideration. The only dispute is rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the income of the Assessee on the below mentioned reasons : 6.5. In view of the above facts, the identity existence of M/s. Laxmi Enterprises and genuineness of transactions of purchases of raw material by the Assessee remained un-verifiable, as ; a) As during the course of survey done by ADIT(Inv.), Unit-II, Ghaziabad (UP) that the above party admitted to have received commission of 25 paise for every 100 rupees for providing entry for sale of goods. b) The existence of the party on the given addresses are verifiable dejure but de-facto they are not functioning and doing the real business of sale purchase of steel. c) The location of the premises from which business is purport to be carried is such from which operation of business alleged to be carried out is not possible. d) The level of transactions routed through the bank account of these parties are such voluminous and big, which person of status of these parties in no manner can match. e) Money routed through the bank accounts are at first stage transferred to other accounts and at second stage these are withdrawn mostly in cash, which is repatriated to the beneficiary i.e. the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant to get to the truth. This was never done. Therefore, adverse statement by Sh. Saini could not be held against the appellant. Secondly, it is undisputed that the material was actually used as per the certificate of the architect and the quantity of purchase and consumption of steel in the projects has not been found to be incorrect or assailed by the revenue. In these circumstances, it cannot be held that the purchases were bogus or unexplained. 1 hold accordingly. The addition of Rs.8.64,000/- is deleted. 6.4 The appropriate course for the revenue was to first enquire into the matter in the case of Sh. Saini (SSC) and Sh. Dubey (LE) and take appropriate action according to the law. I hold accordingly, and direct the AO to make necessary reference to the AO of the said two persons / proprietors. Adverse inference can be drawn against the appellant only if it is established from this enquiry that the purchases were indeed bogus or the material so supplied was not actually consumed. 6.2 Before us the Ld. DR reiterated the observations of the AO as recorded in assessment order and supported the decision of AO in making the addition in hand. The Ld. DR further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. By way of Ground No. 3, the Assessee has claimed that the assessment order passed by the Assessing Officer u/s. 143(3) read with section 153A of the Act is illegal and without jurisdiction and the ld. commissioner of Income-tax (Appeals) should have held so. The Assessee failed to substantiate the present ground and even otherwise we do not find any infirmity in the decision of the Ld. Commissioner on the issue under consideration, hence Ground no. 3 stands dismissed. 7.1 In the result, the appeal filed by the Assessee stands dismissed. ITA No. 1466/Del/2014 (A.Y. 2009-10): 8. In this case, the Assessee has raised following grounds of appeal: 1. On the facts and circumstances of case and in law, the Commissioner of Income Tax (Appeal) erred in confirming the addition of Rs.57,02,001/- as income from other sources instead of Income of Rs.96,89,039/- returned by the assessee as business income. 2. On the facts and circumstances of case and in law, the addition of Rs.2,62,02,645/- made by the assessing officer on account of alleged bogus purchase is beyond the jurisdiction of provisions of section 153A of Income Tax Act, 1961 and Commissioner of Income T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under consideration. Consequently, in the absence of any plausible reason and/ or material, we are inclined to dismiss this ground under consideration. 12. Ground No. 4 pertains to the addition of Rs.2,07,040/- on account of disallowance of interest as made by the Assessing Officer, however, deleted by the ld. Commissioner. The Assessee by raising this ground also raised the issue that the addition of Rs.2,07,040/- was beyond the scope of section 153A of the Act and therefore, the ld. Commissioner erred in not holding so. As the ld. Commissioner already deleted the addition in hand and the Assessee failed to substantiate the present ground and even otherwise we do not find any infirmity in the decision of the Ld. Commissioner on the issue under consideration, hence Ground no. 4 also stands dismissed. 13. Ground No.5 is general in nature, hence, needs no independent adjudication. 14. In the result, the appeal filed by the Assessee stands dismissed. ITA No. 1467/Del/2014 (A.Y. 2010-11): 15. The Assessee has raised following grounds of appeal : 1. On the facts and circumstances of case and in law, the Commissioner of Income Tax (Appeal) erred in confirming t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 153A of the Act and the ld. Commissioner erred in not holding so. We observe that the ld. Commissioner deleted the said addition of Rs.13,00,000/- by considering the peculiar facts and circumstances of the case. The Assessee failed to substantiate the present ground and even otherwise we do not find any infirmity in the decision of the Ld. Commissioner on the issue under consideration, hence Ground no. 3 stands dismissed. 19. Ground No. 4 is general in nature, hence, needs no adjudication. ITA No. 1468/Del/2014 (A.Y. 2011-12): 20. The Assessee has raised following grounds of appeal in this appeal: 1. On the facts and circumstances of case and in law, the Commissioner of Income Tax (Appeal) erred in confirming the addition of Rs. 19,27,500/- as income from other sources instead of Income of Rs.75,83,789/- returned by the assessee as business income. 2. On the facts and circumstances of case and in law, the addition of Rs. 12,43,20,102/- made by the assessing officer on account of alleged bogus purchase, is beyond the jurisdiction of provisions of section 153 A of Income Tax Act, 1961 and Commissioner of Income Tax (Appeal) erred in not holding so. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition of Rs. 2.62,02,645/- made by AO on account of Bogus purchase. 4. On the facts and circumstances of the case the Ld. CIT(A) has erred in law in deleting the addition of Rs. 50,86,488/- made by AO on account of excessive commission expenses. 5. On the facts and circumstances of the case the Ld. CIT(A) has erred in law in deleting the addition of Rs. 2,07,040/- made by AO on account of interest free advances. 6. The appellant craves leave to add, amend any/all the grounds of appeal before or during the course of hearing of the appeal. 26. Grounds No. 1 6 are general in nature, hence, needs no adjudication. 27. Ground No. 2 pertains to deletion of addition of Rs.57,02,001/-. We observe that this addition was made by the Assessing Officer u/s. 69A of the Act and the ld. Commissioner by considering the said addition as well as the relevant provisions of the Act, has held that it was not appropriate for the Revenue to invoke the section 69A to charge the amount of tax. However, the ld. Commissioner held the said amount as taxable u/s. 56 of the Act as income of the Assessee under the head other sources . Hence, in view of our decision on ground No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pening balance of advances from customers from closing balance of advances from customers, committing the mistake of not considering the sales of Rs.43,69,98,530/- credited in the P L account. The ld. Commissioner by thoroughly considering the assessment order and the aforesaid explanation made by the Assessee came to the conclusion that the calculation of the figure of advance from customer is factually wrong and cannot form the basis of any disallowance. The ld. Commissioner further held that this could have been clarified, if the issue had been brought to the notice of the Assessee by the Assessing Officer. The Assessee was never informed of the adverse conclusion reached by the Revenue. The addition made is flawed and is deleted. In our considered view, the ld. Commissioner based his decision on peculiar facts and circumstances of the case and even otherwise we do not find any reason and/or material to contradict the findings of the ld. Commissioner in deleting the addition under consideration. Consequently, ground No. 4 raised by the Revenue Department stands dismissed. 30. Ground No. 5 pertains to deletion of addition/ disallowance of Rs.2,07,040/- on account of interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issed. 36. Ground No. 4 pertains to deletion of addition of Rs.13,00,000/- made by the Assessing Officer on account of unexplained loan credit from Anjali Buildcom Pvt. Ltd. We observe that the ld. Commissioner by considering the peculiar facts and circumstances that the amount was not borrowed during the year under consideration, but only the repayment was made during the year, as the credit does not pertain to the previous year, no addition can be made in this year. The Assessee has discharged its primary onus of establishing the transaction. No defect is found in the evidences filed by the Assessee. As the confirmations had been filed, reference could have been made to the Assessing Officer of the creditor company for further verification. The addition appears to have been hurriedly made without proper application of law and procedure and cannot be sustained. We observe that the ld. Commissioner duly considered the peculiar facts and circumstances of the case and correctly adjudicated the facts pertaining to the addition under consideration. Even otherwise, we do not find any reason and/or material to controvert the findings of the ld. Commissioner in deleting the addition un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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