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TMI Blog2023 (8) TMI 1270X X X X Extracts X X X X X X X X Extracts X X X X ..... ghela [ 2020 (11) TMI 595 - ITAT MUMBAI] we direct the AO to delete the additions made. Accordingly, the appeal filed by the assessee is allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount. Hence, no expenses has been claimed on this account. 2. Copy of tax invoice and bank statement showing payment to supplier by account payee cheque has been provided to you with our earlier submission. 3. The machine which was purchased in that year is in use presently, attest photograph of the machine has also been provided to you. 4. Since the purchase was made very long ago about 4-5 years back, we do not have the current contract details of the party. Since the machine itself is in possession of our client, the purchase of machine is totally genuine and there is no reason to doubt that the purchases is bogus. Without prejudice to what is submitted above, you are requested to kindly provide us with certain details as requested below 1) You have relied on list of beneficiaries who have taken bogus purchase bills which inter a alia includes name of our client. Please furnish us a copy of said list of beneficiaries which is stated by you to include name of our client. 2) You have mentioned that the said party have also declared that the said party have also declared under oath u/s. 14 of MVAT Act, 2002 and have relied upon the same while issuing notice u/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is especially within the knowledge of any person, then burden of proving that fact is upon it. All the above provisions are applicable in the instant case. In this case, assessee claims the purchases made from various parties. Therefore, burden lies on the assessee to prove that the said facts (Section 101 and 103 of Indian Evidence Act 1872). Secondly, the payment made to the purchase parties are within the knowledge of the assessee. Therefore, the burden is on it to establish that fact. However, the burden has not been discharged by the assessee. 9. It is pertinent to note here that the material has been received by the assessee from the sources best known to him. At the same time, it is also possible that assessee purchased machine from some other suppliers and received bill from some one else which is commonly known as grey market from the sources best known to him. In view of the above, the said expenditure to the tune of Rs. 28,12,500/- is treated unexplained expenditure u/s 69C of the Act. Also the depreciation claimed asset to the tune of Rs. 3,75,000/- is also disallowed as not a business expenditure. Penalty proceedings u/s 271(1)(c) are hereby initiated separately for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther hand, Ld.DR relied on the orders of the lower authorities and submitted that sales tax authorities have investigated the issue and the supplier was declared as non-genuine party. 11. Considered the rival submissions and material placed on record, we observe from the record that the case of the assessee is reopened based on the information received from Sales Tax Department, Government of Maharashtra as per which the supplier is declared as non-genuine supplier. Accordingly, the case of the assessee was reopened and the value of the machinery declared by the assessee is disallowed and also the respective depreciation claimed by the assessee is also disallowed. In our considered view the Assessing Officer cannot disallow the total value of the asset and also simultaneously disallow the depreciation claimed by the assessee. The disallowance can only be made to the extent of the benefit claimed by the assessee under the Act. In the given case the assessee has claimed benefit only to the extent of depreciation. By observing the above, we observe that the similar issue was considered and decided by the Coordinate Bench in the case of Sashai Natwar Waghela v. ITO (supra). The releva ..... X X X X Extracts X X X X X X X X Extracts X X X X
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