2023 (6) TMI 1123

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....ic adjudication. Remaining effective grounds for adjudication are as follows:- 3. That on the facts and circumstances of the case and in law the CIT(A) was not justified in sustaining 25% of addition made by the Ld. AO being 25% of 30,68,100/- by relying on the decision of Hon'ble High Court of Gujarat in the case of CIT vs. Bhlanath Poly Fab Pvt. Ltd. 355 ITR 290. 4. That on the facts and circumstances of the case and in law the CIT(A) was not justified in sustaining the addition made by AO on account of alleged bogus purchase from M/s. Mani Prabha Impex Pvt. Ltd. 5. That on the facts and circumstances of the case and in law, the CIT(A) was not justified and has erred in sustaining addition of Rs. 61,362/- on the presumption that com....

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....dustries ltd. vs. DCIT reported as [2017] -TIOL -23-SC-IT and judgment of Hon'ble Gujarat High Court in the case of Vijay Protein Ltd. vs. CIT 58 taxmann.com 44 (Guj.) held that when the Department has not disputed assessee's sales and there was no discrepancy between the purchases shown by the assessee and sale declared then the Tribunal correctly the addition limited to the extent of brining the GP rate on purchases at the same rate of other genuine purchases. The ld. AR submitted that in the present case no addition is warranted even if the purchases made from Mani Prabha Impex P. Ltd. are treated as bogus because the assessee before the authorities below as well as before this bench has submitted stock summary for FY 2009-10, ledger acc....

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....to Rs. 61,362/- u/s. 69C of the Act. 7. From perusal of first appellate order the ld. CIT(A) by relying judgment of Hon'ble Supreme Court in the case of N.K Proteins vs. DCIT (supra) and judgment of Hon'ble Gujarat High Court in the case of Vijay Proteins Ltd. (supra) restricted the addition to Rs. 7,67,025/- being 25% of allege purchases and also confirm addition of Rs. 61,632/- being 2% on account of commission paid for obtaining accommodation entries. 8. The main contention of assessee is that the Assessing Officer have not rejected books of accounts of assessee and therefore no addition can be made on estimation basis. Secondly, as per judgment of Hon'ble Bombay High Court in the case PCIT vs. M/s. Mohd. Hazi no addition is warranted ....

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....he relevant financial period, in such a situation I am unable to see any accruing of any benefit or profit to the assessee which may attract charging provisions of tax. Therefore it is also not a case of the Assessing Officer that the assessee made payments against impugned purchases in cash out of unexplained and unaccounted income during the period and there is no adverse and positive material in the hands of Assessing Officer for alleging the same. These facts have not been controverted by the ld. Senior DR. In such a situation, in the totality facts and circumstances of the case I find that there was no logic or valid reason for the ld. CIT(A) to make disallowance of 25% of total purchases and to confirm addition on account of commissio....