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TMI Blog2011 (3) TMI 1830X X X X Extracts X X X X X X X X Extracts X X X X ..... the following purchases of Rs. 2,12,551/- effected from M/s. Deepak Enterprises for the reason that the invoice dates fall in the preceding year while the appellant has recorded purchases in current year: Sr. No. Bill No. Amount (Rs.) Date of entry of purchase(in assessee s book) 1 115 59253 4.6.2003 2. 116 41643 10.6.2003 3. 101 111655 4.6.2003 4. Total 212551 The assessee submitted that purchases were recorded upon receipt of goods in current year. The goods were received and consumed during the year under reference. The corresponding purchases were accordingly recorded in the year of stock receipt and consumption. Assuming the AO was right that the purchases ought to have been recorded in the year to which the invoices pertained, still, such recording would have had same impact on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fice letter dt. 16.10.2008. However, the assessee has also not replied to the above letter. The additional evidence produced may not be admitted at the appeal stage as 1. The assessee was given sufficient opportunity during the assessment proceedings which the assessee did not avail of. 2. The assessee was not prevented by sufficient cause for producing evidence before the AO. 3. The AO has not refused to admit the said evidence during the assessment proceedings. A copy of this report of the AO was supplied to the appellant for his counter comments and arguments if any. In reply, the appellant filed a letter dt. 13.3.2009 stating therein that letter dt. 26.9.2006 notifying change of address and letter dt. 20.10.2008 from Deepak Enterprises alongwith their confirmation and copy of bank statement are being enclosed herewith. It has thus been argued by the AR of the appellant that the communication claim having been made by the AO vide letter dt. 16.10.2008 has not been received due to change in address of the appellant and thus further claimed that since M/s. Deepak Enterprises vide their letter dt. 20.10.2008 had confirmed the sales made by them to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO has not refused to admit the said evidence during the assessment proceedings. To this contention of the AO, the appellant has not made any counter comments and arguments. The appellant s silence on this finding in the report of the AO proves that the appellant is having no sufficient reason and cause for claiming and furnishing the additional evidences at the appellate stage. Therefore, the additional evidences filed are not admitted. Hence the same are rejected and treated as having no relevance for considering and deciding this ground of appeal. Having not admitted the additional evidences, I do not have any other reason, but confirming the action of the AO in making disallowance of Rs. 2,15,551/- claimed by the appellant as expenditure incurred for purchases which were not proved beyond any doubt before the AO. Therefore, the addition made by the AO of Rs. 2,15,551/- u/s. 68 of the I.T. Act by creating cash credit in the name of Deepak Enterprises obtaining bogus bills, is upheld. This ground is, therefore, decided against the appellant. 6. Aggrieved, assessee preferred an appeal before us and raised the following ground: 1. (a) On the facts and in the circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a final and ultimate decision, the Tribunal is amply empowered to admit additional evidence under rule 29. Therefore, the Tribunal had to admit additional evidence produced by the assessee since that was vital and essential for rendering justice and in deciding appeals. However, it was necessary to give the department a reasonable opportunity of rebutting it according to the principle of nature justice and for that purpose the matter was restored to the file of the AO. Following the ratio of the above said decision, we remit the issue back to the file of the AO for giving a reasonable opportunity to the assessee to produce before the AO all the evidences and thereafter the AO shall consider/re-examine the issue of addition of bogus purchases from M/s. Deepak Enterprises in accordance with law. 9. The next ground raised by the assessee reads is as follows: (b) On the facts and in the circumstances of the case and in law the Ld. CIT(A) has erred in confirming the addition of Rs. 16,33,869/- of interest paid. 10. Following the decision in the case of Abhishek Industries Ltd. 156 Taxman 257, the Ld. CIT(A) held as follows: Since the appellant having failed to es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estore the issue to the file of the AO to examine the balance sheet of the assessee on those dates and decide the issue afresh in accordance with law. The AO while deciding the issue should keep in mind the ratio of the decision of the Jurisdictional High Court in the case of CIT v. Reliance Utilities Power Ltd., (313 ITR 304) 13. The last ground raised by the assessee reads as follows: On the facts and in the circumstances of the case and in law the Ld. CIT(A) has erred in confirming the addition of Rs. 1,56,776/- as partners personal expenses on motor car expenses depreciation. 14. The Ld. CIT(A) held as follows: However, on going through the assessment order, I find that the AO has discussed this issue in para 5 of his order by stating that out of vehicle, running and maintenance expenses debited to the P L account at Rs. 4,52,081/-, since personal use of motor cars/vehicles by the partners for the purposes other than business cannot be ruled out, 1/5th out of these expenses is disallowed. Similarly, 1/5th of depreciation on motor cars/vehicles claimed at Rs. 3,31,797/- is also disallowed. Since the appellant has not contested this finding of the AO during ..... X X X X Extracts X X X X X X X X Extracts X X X X
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