TaxTMI 
TaxTMI 
2014 (9) TMI 654
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....emently opposed the condonation of delay on the basis of reasons recorded in the affidavit are contrary. He further relied upon the order of Hon'ble Supreme Court in case of Vedabai alias Vaijayanatabai Baburao Patil vs Shantaram Baburao Patil, 253 ITR 798, wherein it was held that in exercising discretion u/s. 5 of the Limitation Act, the Court should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. He further relied in case of JCIT vs Tractors & Farm Equipments Ltd., 104 ITD 149, ITAT Chennai (TM), wherein it was held that granting the indulgence and condoning the delay it must be proved beyond the shadow of doubt that the appellant was diligent and was not guilty of negligence. After considering the both sides, facts and case laws, we condone the delay. 2. This is an appeal at the behest of assessee which has emanated from the order of CIT(A)-II, Baroda, dated 27.05.2009 for assessment year 2002-03. The effective grounds of appeal are as under: "1. The learned Commissioner of Income Tax (Appeals) erred in fact and in law in to-opening the assessment u/s 147 of....
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....ssuing bogus bills to the parties on demand on commission basis and that they were doing the same in the names of their fictitious firms, M/s. Girnar Sales Corporation and M/s. Shiv Metal Corporation. During the course of such inquiry, it was also found by the A.O. that apart from issuing bogus bills to M/s. Prakash Marbles Engineering Co, the said parties through their fictitious concerns had issued such bogus bills to various parties in the market and one of them being General Mechanical Works, who had sought these accommodations bogus bills from Shri Navin Raval, claimed to be the proprietor of fictitious firm, M/s. Girnar Sales Corporation during the accounting period relevant to the assessment year 2002-03, the details of these bogus purchases are as under: (a) Details of purchases (bogus) from Girnar Sales Corporation: Sr. No. Bill No. Date Material Quantity(Kgs.) Amount(Rs.) 1. 160/1 18.12.2001 S.S. Sheet 1790 21480/- 2. 172/02 06.01.2002 S.S. Sheet 2290 272400/- 3. 207/02 05.02.2002 S.S. Sheet 2195 263400/- 6275 750600/- ....
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....en adduced by the appellant to show that purchases were indeed made from M/s. Shiv Metal Corporation and M/s. Girnar Sales Corporation. The Prop. of M/s. Shiv Metal Corporation has submitted that he has only given accommodation bills on receipt of crossed bank cheques after deduction of 1% commission. Apart from stating that the payments have been made by cheques no other evidence has been brought on record. There is no evidence transport expenses, octroi expenses or other substantiating proof. The onus lies squarely on the appellant to prove the genuineness of his purchases. It is not the case of the Assessing Officer that the appellant has not consumed material for fabrication and erection of steel structures for Thermal Power Projects. The only issue which remains to be established is that fabrication has been done from goods expressly purchased from M/s. Shiv Metal Corporation and M/s. Girnar Sales Corporation. Since the appellant has failed to so the Assessing Officer was justified in making the addition and same is therefore confirmed." 4. Now, the assessee is before us. Ld. Counsel for the assessee filed the paper book which includes copy of the purchase bills made from M....
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....ein net profit decided @ 30% on bogus purchase by the co-ordinate Bench. Our decision gets support from the order of ITAT 'C' Bench in the case of ITO vs. Shri Gumanmal Misrimal in ITA Nos. 2536, 2537, 2575 & 2576/Ahd/2008, order dated 13.01.2011, the relevant portion is reproduced as under: "7.1 The ld. AR submitted that 30% of the disallowance made by the ld. CIT(A), following the view taken in the aforesaid said decision of the Tribunal, is excessive looking to the nature and business activities of the assessee and in this connection, the ld. AR referred to the decision in the case of Shree Raj Industries(supra), where in disallowance was restricted to 15% of the amount of total purchases disallowed by the AO . We find that in the said case the assessee was dealing in iron and steel and decision relates to AY 1991-92 when the cost of inputs and other expenses as also taxes and duties and consequently selling prices may be different vis-à-vis in the case before us. In any case, comparative cost of inputs, expenses or even selling prices have not been placed before us. Therefore, findings of the ITAT in the said decision can not be followed straightway....
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....parties while no serious efforts appear to have been made by the assessee to discharge such burden of proving the genuineness of the transactions with the said parties. As held in the case of Vijay Proteins(supra), it would be fit case for rejection of the books. Considering the facts of the present case, no material has been brought on record by the assessee to show that the application of rate by the ld. CIT(A) is excessive. As regards estimation of profits, no doubt the AO/CIT(A) should try to make an honest and fair estimate of the income even in a best judgment assessment and should not act totally arbitrarily, but there is necessarily some amount of guess work involved in a best judgment assessment, and it is the assessee himself who is to blame as he did not submit proper accounts and details. [Kachwala Gems Vs JCIT, 288 ITR 10 (2007)(SC)]. Since the assessee miserably failed to establish genuineness of the purchases from the aforesaid two parties with any cogent evidence before the AO or the ld. CIT(A) nor even any such material has been placed before us, we do not find any infirmity in the findings of the learned CIT(A) while upholding rejection of book results and sustain....