TaxTMI 
TaxTMI 
2017 (3) TMI 1712
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....he facts and the circumstances of the case and in law, the ld. A.O. erred in adding Rs. 97,40,779/- being peak credit available with the Appellant by treating the same as non-genuine only on the basis of the information on the web site www.mahavat.gov.in about suspicious dealers whose copy of statement recorded were not furnished to the appellant. b) In the facts and circumstances of the case and in law, the learned AG. erred in adding Rs. 97,40.779/- being peak credit available with the Appellant by treating the same as non-genuine even though the same has been fully allowed by the jurisdictional Mumbai Tribunal in many cases. c) In the facts and circumstances of the case and in law, the learned AO. erred in adding Rs. 97,40,779/- being credit available with the Appellant on the basis of third party statements without issuing notices u/s 133(6) and 131 by himself 3) In the facts and circumstances of the case and in law, the learned Commissioner of Income Tax(A) erred in confirming the addition by overlooking several case laws submitted, 4) The AG wrongly charged interest u/s 2348 and C and initiated penalty u/s 271(1) (c). [B] Relief Prayed: 1) To quash the reassessmen....
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....(c). [C] General:- * The appellant reserve rights to add alter or delete any portion of this appeal before its conclusion. * This appeal is filed in time and m2x please be allowed in full. * A Detailed paper book along with case laws will he submitted at the time of hearing. ITA No. 5295/Mum/2016 for A.Y 2009-10 [A] Grounds of Appeal: 1)In the facts and the circumstances of the case and in law, the learned AO, erred in passing the order s 143 r.w.s 147 and therefore rendering the whole reassessment had in law after 4 years on borrowed satisfaction. 2) In the facts and the circumstances of the case and in law, the learned AO. erred in adding Rs. 15,64,068/- being peak credit available with the Appellant, a) In the facts and the circumstances of the case and in law, the learned A.O. erred in adding Rs. 15,64,0681- being peak credit available with the. Appellant by treating the same as non-genuine only on the basis of the information on the website www.mahavat.gov.in about suspicious dealers whose copy of statement recorded were not furnished to the appellant. b) In the facts and circumstances of the case and in law, the learned A.O. erred in adding Rs. 15,64068/- b....
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....initiation of penalty u/s 2.71(l) (c) [C] General: - * The appellant reserve rights to add alter or delete any portion of this appeal before its conclusion. * This appeal is filed in lime and may please be allowed in full. * A Detailed paper hook along with case laws will be submitted al the lime of hearing. ITA No. 5297/Mum/2016 for A.Y 2011-12 [A} Grounds of Appeal: 1) in the facts and the circumstances of the case and in Jaw. the learned A.O erred in passing the order u/s 143 r.w.s 147 and therefore rendering the whole reassessment bad in law. 2) In the facts and the circumstances of the case and in law, the learned A.0 erred in adding Rs. 9,73,906/- being peak credit available with the Appellant. a) In the facts and the circumstances of the case and in law, the learned A.O. erred in adding Rs. 9,73906I- being peak credit available with the Appellant by treating the same as non-genuine only on the basis of the information on the website www.mahavat,gv.in about suspicious dealers whose copy of statement recorded were not furnished to the appellant. b) In the facts and circumstances of the case and in law, the learned ACL erred in adding Rs. 9,73,906/- being pea....
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....t, State of Maharashtra whereby above mentioned purchases were disallowed by treating them as bogus purchases on the basis of Addition in respect of infusion of cash from alleged hawala parties on the basis of peak credit method treating as income from other sources. 5. Aggrieved by the order of the AO, assessee filed appeal before CIT(A) and the CIT(A) after considering the case of both the parties had dismissed the appeal of assessee. 6. Aggrieved by the order of CIT(A), the assessee has filed the present appeal before us on the grounds mentioned herein above. Although, the assessee has raised many grounds of appeal including challenging the order of reopening. However, ld. AR appearing on behalf of assessee stated at Bar that he do not want to press the ground challenging the order of reopening. Therefore, considering the statement made by ld. AR, the said ground No. 1 raised by the assessee is dismissed. Now, in our considered view,the only effective ground raised by the assessee is regarding challenging the additions made by AO and confirmed by CIT(A). 7. Since, the issues raised in these two appeals are identical, except for year of assessment therefore for the sake of co....
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.... highest degree cannot take place of evidence. Therefore, considering the peculiar facts and circumstances of the case under appeal, we are of the opinion that the order of the FAA does not suffer from any legal infirmity and there are not sufficient evidence on file to endorse the view taken by the AO. So, confirming the order of the FAA, we decide ground no.1 against the AO." b. In the case of Ganpatraj A Sanghavi [I.T.A. No.2826/Mum/2013] it was held that, "A perusal of the orders passed by the tax authorities would show that they have suspected the genuineness purchase only for the reason that the above said five parties were not available in the given addresses. It is pertinent to note, that the AO himself, during the course of remand proceedings, have obtained the bank statements of the above said five parties. It is in the common knowledge of everybody that the bank account, now a days, could be opened only on submission of proper documents. Further the assesse has furnished the Sales tax documents of the above said five parties aid also their income tax details to prove their existence. Thus, it is seen that the assessee has furnished many documents toprove the existence ....
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....of the Sales Tax Department but at the same time it cannot be said that purchases are bogus. We, therefore, set aside the findings of the 14+ CIT(A) and direct the AO to delete the addition of Rs. 4,98,80,892/-." d. In the case of Smt. Ramila P Shah [ITA No 5246/M/2013] it was held that, "In view of the facts discussed above as well as binding judicial pronouncements of the jurisdictional ITAT Mumbai Bench as well as Hon'ble Mumbai High Court and other legal precedents, the addition made by the Assessing Officer amounting to Rs. 28,08,071/ - cannot he sustained. Accordingly, the addition of Rs .28, 08,071/ - is deleted." e, In the case of Shri Paresh Gandhi [ITA No 5706/M/2013] it was held that, "We have heard the rival submissions and perused the material before us. We find that AD had made the addition as one of the supplier was declared a hawala dealer by the VAT Department. We agree that it was a good starting point 11r making further investigation and take it to logical end. But, he left the job at initial point itself Suspicion of highest degree cannot take place of evidence, He could have called for the details of the bank accounts of the suppliers to find out as whe....
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....re the AO has made addition merely on the basis of observations made by the Sales tax dept and has not conducted any independent enquiries for making the addition especially in a case where the assessee has discharged its primary onus of showing books of account, payment by way of account payee cheque and producing vouchers for sale of goods, such an addition could not be sustained. The Ld. CII'(A) has also appreciated the contentions of the assesee that he was not provided with an opportunity to cross examine the sellers, which is required to be given as per the decision of Hon'ble Kerala High Court in the case of Ponkunnam Traders (83 ITR 508 &. 102 ITR 366) Accordingly. the 1d CIT(A) has deleted the impugned addition. On a careful perusal of the decision rendered by Ld. CIT(A) would show that the first appellate authority has analysed the issue in all angles and applied the ratio laid down by the High Courts and Tribunals in deciding this issue, Hence, we do not find any reason to interfere with his order on this issue. Similar additions were deleted in the case of HiralalChunilal Jam [ITA No 4547/M/ 4] in which it was held that. We have heard the rival submissions and....
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....e, we are reversing the order of the FAA. Effective ground of appeal is decided in favour of the assessee" g. Moreover, also in the case of Tarla Shah [1TA No. 5295/Mum12013] it was held that, "We are of the view that the facts of case of the assessee are same as in the foregoing decisions and thus the case of the assessee is squarely covered by these decisions of the tribunal. We, therefore, find no reason to interfere in the order of the Clf(A) and uphold the same by dismissing the appeal of the revenue The AO is directed accordingly." 11. Similarly, in the case of M/s. Imperial Imp. &Exp [1TA No. 5427/MUM'2015] it was held that, "We have carefully considered the rival submissions. The entire discussion in the assessment order reveals that purchases from Four parties namely Dbruv sales Corporation - Rs. 13,67,640/- Subhlaxmi Sales Corp. - Rs. 20,20800/-; Dharhan Sales Corporation - Rs. 9,64656/-; and Paras (India)- Rs,3398400, totalling to Rs. 77,51,496/have been treated to be bogus based on the purported enquiries conducted by the Sales Tax Department of the Government of Maharashtra. Ostensibly, the Assessing Officer ought to have brought on record material which is rel....
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....e has succeeded on the merits of the addition, the other ground raised by the assessee challenging the reopening u/s 147/148 has become academic." j. Recently. In the case of Mahesh K. Shah [ITA No, 5194/Mum12014] it was held that, "Purchases cannot be treated as bogus merely on the basis of the statements and affidavits filed by the alleged vendors before the sales-tax department. The said statements cannot be relied upon without cross-examination of the parties. The fact that the parties did not respond to the s. 133(6) notices is not relevant if the assessee filed copies of purchase invoices, extracts of stock ledger showing entry/exit of materials, copies of bank statements to evidence that payments for these purchases were made Through normal banking channels, etc to establish genuineness of the aforesaid Purchases." k. Moreover, in the case of J-LR. Mehta [387 ITR 561 (Bombay)] it was held that, "Where assessee had taken loan from one N and Assessing Officer added loan amount in income of assessee under section 68 on basis that no confirmation letter had been obtained from N1, since loan was advanced and repaid vide account payee cheques, Assessing Officer should have pro....
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.... fact that all the payments were made by the assessee to the suppliers through banking channel and the assessing officer has also overlooked the fact that quantitative tely of material was available bill to bill on record. We have also gone through all the judgements cited by both the parties the material placed on record by way of paper book and from the cumulative reading of all the documents placed on record, we are of the view that the purchases made by the assessee cannot be termed as bogus and in this respect we draw our strength from the judgements passed by high courts as well as orders passed by coordinate benches of ITAT. We also rely upon the latest judgement passed by Hon'ble Bombay High Court in the case of "H. R. Mehta versus ACIT"Mumbai(2016) 72 Taxmann.com 110 (Bombay). Wherein it has categorically been held by the Hon'ble Bombay High Court that the assessing officer should have provided the assessee materials used against him apart from providing him an opportunity to cross examine deponent's whose statements were relied upon. Admittedly in this case no material was provided by the AO to the assessee which was used against him and nor any opportunity to cross exami....