TaxTMI 
TaxTMI 
2017 (1) TMI 1329
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.... the following Grounds of appeal:- "1. On the facts and in the circumstances of the case and in law the Ld. C.I.T (A) erred in deleting the addition of Rs. 4,70,32,085/- made on account of non genuine purchases from various parties and directing the AO to delete the entire addition of Rs. 4,70,32,085/- even though some of these parties are included in the list of suspicious and/or hawala dealers provided by the Sales Tax Department. 2. Whether on the facts and in the circumstances of the case and in law, the Ld. C.I.T. (A) erred in directing the Assessing Officer to delete the addition made on account of bogus purchases ignoring the fact that it is a settled provision of law that the onus is upon the assessee to prove the genuineness of the alleged purchases. 3. Whether on the facts and in the circumstances of the case and in law, the Ld. C.I.T. (A) erred in directing the Assessing Officer to delete the addition made on account of bogus purchases relying on the decision of the Hon'ble Jurisdictional High Court in the case of CIT 1, Mumbai Vs. Nikunj Eximp Enterprises Private Limited, the facts of which are distinguishable from the fact of the present case. 3.1. In t....
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....ter has to be considered in the light of human probabilities and further that any transaction about which direct evidence is rarely available should be inferred on the basis of circumstances available on the record. In that case, the majority opinion of the Settlement Commission was approved as it was taken after considering the surrounding circumstances and applying the test of human probabilities." 2.1 Grounds of Cross Objection raised by the assessee for 2010-11 read as follows:- 1. The Ld. CIT CA) erred In upholding reopening of assessment u/s 148 without appreciating that: " i) The assessment was reopened on the basis of information received from DGIT (lnv), Mumbai without forming any belief as to income has escaped assessment. Therefore, as per section 147, such reopening is invalid. ii) There was no "reason to believe" as there was no live link of tangible material with formation of belief that income has escaped assessment, hence, invalid. 2. The Respondent prays that reopening of assessment may be quashed and held to be void ab-initio. 3. The respondent craves leave to add, alter or amend any or all the above grounds of cross-objection at the time of hear....
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....uting Government contracts and had submitted copies of work order issued by the Municipal Corporation and other documents, which supported that the purchases were genuine. The CIT(A) has further come to a finding that there was no evidence to say that the payments made by the assessee through account payee cheques had been received back in the form of cash. The CIT(A) also noticed that none of the parties have made any statements that the purchases by the assessee were in-genuine. For all the above reasons, the CIT(A) held the purchases to be genuine and not bogus. However, the CIT(A) further observed that even if, some of the purchases were not verifiable, yet having regard to the gross-profit declared by the assessee, in the segment of garden developments and maintenance, it could not be said that it was insufficient looking at the nature of the business carried out by the assessee. In this context, so far as the assessment year 2010-11 is concerned, the CIT(A) noticed that assessee has declared G.P rate of 11.67% in the garden development and maintenance segment and that the same was adequate considering the nature of business. Therefore, so far as the assessment year 2010-11 is....
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....sought to be defended, qua the appeals of the Revenue. 6. We have carefully considered the rival submissions. It is quite clear that at the level of the Assessing Officer, the purchases have been held to be unverifiable primarily for the reason that the notices issued by the Assessing Officer under section133(6) of the Act were either not served or if they were served, the same were not responded to by the respective parties. In contrast, the CIT(A) has recorded a categorical finding in para 6.29 to 6.30 of her order and has observed that the purchases were liable to be held as genuine and not bogus. In the context of assessment year 2010-11, we find that the said findings of the CIT(A) have not been assailed by the Revenue and cannot be said to be based on irrelevant material. Even before us, the Ld. Departmental Representative has merely reiterated the stand of the Assessing Officer, which in our opinion cannot be sustained in the face of the findings of the CIT(A). The CIT(A) has observed that the payments made are supported by confirmation of the parties, copies of invoices, bank statements and further that none of the parties have named the assessee in their statements. Con....