2020 (2) TMI 587

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.... has proposed the following three questions of law for the consideration of this Court : (a) Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT was justified in deleting the addition made by the A.O. on account of undisclosed profit and unaccounted investment in undervalued goods despite the assessee himself having admitted before DRI in his statement about his under invoicing of imports, though later retracted, when Hon'ble Supreme Court in Surjeet Singh Chhabra Vs Union of India [1997 (89) ELT 646(SC)] held that the confession, though retracted, is an admission and binding ? (b) Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT was justified in not co....

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....nt of the peak unaccounted investment and addition of Rs. 35,13,067/- on the account of GP on unaccounted purchases and finalized the assessment under Section 143(3) of the Act. 5. The assessee, being dissatisfied with the assessment order, preferred an appeal before the CIT(A). The CIT(A) allowed the appeal of the assessee vide order dated 28th October 2010. The CIT(A), while allowing the appeal of the assessee, observed as under: "7.1 I have carefully gone through the reasons mentioned by the A.O. in the assessment order as well as the lengthy submissions and arguments submitted on behalf of the appellant. I have also considered various judicial pronouncements cited on behalf of the appellant. I find that in the assessment order the A.....

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.... the partner of the appellant firm stated that they used to make payment to these Japanese and Chinese sellers after lifting of goods from the port. This is completely unbelievable. No exporter will agree for such a risky proposition. No exporter will take such a risk of delivering goods in advance without taking full payment. Not even a single person or representative of the Japanese/Chinese Sellers has been identified either by the partner or by the DRI or by the A.O. It is unbelievable that the seller who is sitting in JAPAN/CHINA will deliver the goods to a purchaser of Surat without receiving full payment and will depute a person who has never been identified by anybody to collect the differential cash from the buyer at Surat and t....

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.... appeal preferred by the assessee and affirming the order passed by the CIT(A), observed as under : "7. We have heard the rival submissions and perused the relevant material on record. We find that the addition made on the showcause notice issued by the DRI. However, said statement was retracted by the partner of the assessee-firm. That the AO has based his findings influenced solely on DRI. There is no evidence whatsoever brought on record which could suggests that the assessee has actually done under invoicing by making import in purchases. Therefore, in our considered opinion, in the absence of any documentary evidence, no addition can be made on the action of third party i.e. the DRI. Further, the CESTAT, West Zone Bench Mumbai, vid....