ITO 24(3)(4), MUMBAI V. BRAJ,ADEV D SHUKLA, MUMBAI

ITA 4603/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84273 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 26-11-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 08-06-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AKHILENDRA YADAV
• Assessee Lawyers: ASHOK J PATIL
• Keywords: Bogus purchase
• Section: 143(3); 133(6); 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B , MUMBAI BEFORE SHRI D. KARUNAKAR RAO , ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER ITA NO. 4603 /MUM/2011 ASSESSMENT YEAR: 2007 - 08 ITO 24(3)(4) C - 11, R. NO. 706, PRATYAKSH KAR BHAV AN, BKC BANDRA (EAST) MUMBAI 400 051 VS. SHRI BRAHMADEV D. SHUKLA 104, RAGUNATH KRUPA, NEAR SABNIS HOSPITAL AAREY ROAD GOREGAON. EAST MUMBAI PAN ANAPS 9230 M (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI A S HO K J. PATIL REVENUE BY : SHRI AKHILENDRA YADAV DATE OF HEARING : 2 6 . 11 . 2014 DATE OF ORDER : 28 . 1 1 .2014 O R D E R PER AMIT SHUKLA , J M : THIS APPEAL HAS BEEN PREFERRED BY THE REVENUE AGAINST ORDER DATED 31.03.2011 , PASSED BY THE LD.CIT(A) - 34 , MUMBAI, FOR THE QUANTUM OF ASSESSMENT PASSED U/S 143(3) FOR THE A.Y. 20 07 - 08 ON FOLLOWING GROUNDS OF APPEAL. ON THE FACTS AND IN THE CIR CUMSTANCES OF THE CASE AND IN LA W, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITIONS MADE BY AO U/S 40(A)(IA) OF THE I.T. ACT, 1961 OF RS.23,00,354/ - FOR DEFAULT TDS ON PAYMENTS SPECIFIED U/S 194C, PLACING RELIANCE ON THE DECISION IN THE CASE OF CIT(TDS), CHANDIGARH VS. UNITED RICE LTD. ITA NO. 633 OF 2007 WHEN THE FACTS OF THE CASE ARE C LEARLY DISTINGUISHABLE. ITA NO. 4603/MUM/2011 SHRI BRAHMADEV D. SHUKLA ASSESSMENT YEAR: 2007 - 08 2 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITIONS MADE BY AO OF RS.1,11,559/ - TOWARDS BOGUS PURCHASES IN CONTRAVENTION OF SECTION 102 OF EVIDENCE ACT. 2. BRIEF FACT S OF THE CASE ARE THAT THE ASSESSE IS AN INDIVIDUAL HAVING PROPRIETORSHIP CONCERNS, NAMELY, M/S ABHIRAJ SALES CORPORATION, WHICH IS ENGAGED I N THE BUSINESS OF SUPPLY OF BUILDING MATERIALS AND M/S SHEETAL TRANSPORTATION , WHICH IS ENGAGED IN THE BUSINESS OF TRANSPORTATION. FROM THE ACCOUNT OF M/S SHEETAL TRANSPORTATION , THE ASSESSING OFFICER NOTED THAT THE ASSESSE HAS DEBITED AN AMOUNT OF RS.24,03,399/ - UNDER THE HEAD PURCHASES , WHICH WERE IN INFACT TRANSPORTATION CHARGES. THE ASSESSING OFFICER HELD THAT , SIN CE THE ASSESSE HAS NOT DEDUCTED TDS ON SUCH TRANSPORTATION CHARGES AS WAS REQUIRED U/S 194C , THEREFORE, DISALLOWANCE U/S 40(A)(IA) SHOULD BE MADE. THE DETAILS OF SUCH PAYMENTS WERE AS UNDER: S. NO. NAME OF THE PARTY NATURE OF EXPENDITURE AMOUNT (RS.) 1 ABHIRAJ, TRANSPORT CORPORATION TRANSPORT CHARGES 67 , 500 2 AKANSHA TRANSPORT DO 2,46,300, 3 ASHOTOSH VAZE DO 3,23,850 4 BEENA TRANSPORT DO 3,35,000 5 DEVRAM PATIL DO 60,900 6 JAI GANESH TRANSPORT SERVICE DO 61,300 7 RAJU PATIL DO 3,80,400 8 SAI CAR RIERS DO 1,63,629 9 S.S. TRANSPORT DO 1,13,375 23,00,354 ITA NO. 4603/MUM/2011 SHRI BRAHMADEV D. SHUKLA ASSESSMENT YEAR: 2007 - 08 3 THE ASSESSEE S CASE BEFORE THE ASSESSING OFFICER WAS THAT , THE SUBCONTRACTOR / TRANSPORTATER WHO HAD CARRI ED OUT THE WORK HAD FURNISHED F O R M 15 - I, STATING THAT THEIR INCOME WAS BELOW TAXABLE LIMIT , THEREFORE, NO TAX IS REQUIRED TO BE DEDUCT ED . THE AO S CONTENTION WAS FURTHER THAT THE ASSESSE WAS REQUIRED TO FURNISH FORM NO. 15 - J TO THE PRESCRIBED INCOME TAX AUTHORITY ON OR BEFORE 30 TH JUNE AFTER THE EXPIRY OF THE FINANCIAL YEAR , WHEN THE ASSE SSE HAD RECEIVED THE FORM NO. 15I. SINCE THE ASSESSE HAS NOT COMPLIED WITH THE SAID PROVIS I ON, SECTION 194C AUTOMATICALLY GETS ATTRACTED THAT ACCORDINGLY HE MADE THE DISALLOWANCE ON ACCOUNT OF TRANSPORTATION CHARGES OF RS.23,00,354/ - U/S 40(A)(IA). 3. FU RTHER WHILE SCRUTINIZING THE ACCOUNTS OF M/S. ABHIRAJ SALES CORPORATION, THE ASSESSING OFFICER HAD ISSUED NOTICES U/S 133(6) TO VARIOUS PARTIES FROM WHOM THE ASSESSE HAD MADE PURCHASES. IN RESPONSE , CERTAIN PARTIES FILED THEIR DETAILS , HOWEVER, IN RESPECT OF PURCHASE AMOUNT OF RS.22,31,182/ - FROM M/S. GALLANT TRADERS PVT. LTD., THE NOTICE WAS RETURNED BACK. THE ASSESSE ALSO FAILED TO FILE ANY CONFIRMATION. AGAIN A NOTICE U/S 133(6) WAS SENT THROUGH INCOME - TAX INSPECTOR , WHO VIDE LETTER DA T ED 04.11.2009, SUB MITTED THE FOLLOWING REPORT : - IN RESP E CT OF M/S. GALLANT TRADERS PVT. LTD 1 ST FLOOR, 4 TH CHAWL CROSS LANE, KALBADEVI, MUMBAI - 400 002 DT. 04.11.2009 ITA NO. 4603/MUM/2011 SHRI BRAHMADEV D. SHUKLA ASSESSMENT YEAR: 2007 - 08 4 WITH REFERENCE TO THE ABOVE AS PER YOUR DIRECTION, I ALONG WITH SMT. JYOTIKA RATANPAL, INSPECTOR, WARD 24(3)(3), VISITED ON 03.11.2009. M/S. GALLANT TRADERS PVT. LTD. 1 ST FLOOR, 4 TH CHAWL CROSS LANE, KALBADEVI ROAD MUMBAI - 400 002. BUT WE COULD NOT FIND THE ABOVE ADDRESS AS ADDRESS IS INCOMPLETE. THERE IS NO BUILDING OR NO. OF CHAWAL CROSS LANE. ON THIS BACKGROUND , THE ASSESSING OFFICER OBSERVED THAT PURCHASES SHOWN BY THE ASSESSE IN NAME OF M/S. GALLANT TRADERS PVT. LTD. APPEARS TO BE BOGUS. AS AN ALTERNATIVE CONTENTION BEFORE THE AO, THE ASSESSE SUBMITTED THAT APPROPRIATE GP RATE MAY BE CONSIDERED IN RE SPECT OF SUCH PURCHASES UNDER THESE FACTS AND CIRCUMSTANCES, THE ASSESSING O FFICER REJECTED THE BOOKS OF ACCOUNT AND THE BOOK RESULT S AND HELD THAT GP RATE OF 5% ON THE PURCHASE OF RS.22,31,182/ - SHOULD BE MADE. ACCORDINGLY HE DISALLOWED SUM OF RS.1,11,559 / - . 4. BEFORE THE LD.CIT(A) , REGARDING FIRST ISSUE, THE ASSESSE SUBMITTED THAT THERE WAS NO ORAL OR WRIT TEN CONTRACT WITH THE TRANSPORTERS/SUBCONT RACTOR AND THEREFORE, ASSESSE WAS NOT LIABLE TO DEDUCT TDS U/S 194C . FURTHER THE ASSESSE HAD ALREADY SUBMITT ED FORM NO. 15 - I GIVEN BY EACH TRANSPORTE R , THAT NO TDS SHOULD BE DEDUCTED. THEREFORE, THE DISALLOWANCE MADE U/S 40(A)(IA) SHOULD BE DELETED. THE LD.CIT(A) DELETED THE SAID DISALLOWANCE ON A DIFFERENT FOOTING THAT , THERE IS NO FINDING OF FACT BY THE AO THA T THERE WAS ANY CONTRACT BETWEEN THE ASSESSE AND THE SUBCONTRACTORS AND IN ABSENCE OF SUCH A FINDING , THE ASSESSE WAS NOT REQUIRED TO DEDUCT TDS U/S 194C . IN SUPPORT OF THIS PROPOSITION, HE RELIED UPON THE DECISION OF HON BLE PUNJAB & ITA NO. 4603/MUM/2011 SHRI BRAHMADEV D. SHUKLA ASSESSMENT YEAR: 2007 - 08 5 HARYANA HIGH COURT IN THE CASE OF CIT VS. UNITED RICE LAND LTD. REPORTED (2008) 217 CTR (P&H) 332 . THUS THE DISALLOWANCE U/S 40(A)(IA) WAS DELETED ON THE SAID GROUND. REGARDING ADDITION OF RS.1,11,559/ - , BEING 5% OF THE PURCHASES OF RS.22,31,182/ - , THE LD.CIT(A) HELD THAT ONCE THE NOTICE COULD NOT BE SERVED OR WAS RETURNED BACK, THE ASSESSING OFFICER SHOULD HAVE INQUIRED FROM THE BANKERS OF THE ASSESSE AS WELL AS OF T HE CREDITOR TO ASCERTAIN THE GENUINENESS OF THE TRANSACTION. SINCE IT IS NOT A CASE OF A LOAN CREDITOR , BUT PURC HASE S , THE ASSESSING OFFICER SHOULD HAVE MADE PROPER INQUIRY. ACCORDINGLY HE DELETED THE ADDITION OF RS.1,11,559/ - . 5. BEFORE US, LD. DR SUBMITTED THAT THE ONUS WAS ON THE ASSESSE TO SHOW THAT ASSESSE HAD NO CONTRACT WITH THE TRANSPORT E RS. IF THE PAYMENT HAS BEEN MADE TO THE SUBCONTRACTORS/TRANSPORTERS FOR THE TRANSPORTATION CHARGES THEN AS PER THE LAW THE ASSESSE WAS REQUIRED TO DEDUCT TDS U/S 194C. REGARDING FILING OF FORM 15 - I BY THE PARTIES, HE SUBMITTED THAT THE ASSESSE WAS THEN FURTHER REQUIRED TO F URNISH FORM 15 - J TO THE COMMISSIONER OF INCOME TAX AS PER THE REQUIREMENT OF THE RULES. SINCE THE STATUTORY REQUIREMENT WAS NOT FULFILLED, THEREFORE , IT WILL NOT ABSO L VE THE ASSESSE FROM THE PROVIS I ON S OF SECTION 194C AND CONSEQUENTLY U/.S 40(A)(IA). REGAR DING DELETION OF RS.1,11,559/ - , HE SUBMITTED THAT THE ASSESSING OFFICER NOT ONLY SENT THE NOTICE U/S 133(6) BUT ALSO DEPUTED ITI , WHO HAD SUBMITTED A REPORT THAT THE ADDRESS PROVIDED BY THE ASSESSE WAS NOT CORRECT AND THEREFORE, SUCH A PARTY COULD NOT BE T RACED . THE ASSESSE HIMSELF HAS ITA NO. 4603/MUM/2011 SHRI BRAHMADEV D. SHUKLA ASSESSMENT YEAR: 2007 - 08 6 ADMITTED BEFORE THE AO THAT GP RATE SHOULD BE APPLIED ON SUCH PURCHASES, WHICH HAS BEEN DONE BY THE AO. NOW HOW THE ASSESSEE CAN SAY SUCH PURCHASE WAS GENUINE. THUS THE F INDING OF THE LD.CIT(A) CANNOT BE SUSTAINED ON THESE FA CTS. 6. BEFORE US, THE LEARNED COUNSEL FOR T HE ASSESSE SUBMITTED THAT THE ASSESSE HAD MADE THE PAYMENT TO THE TRANSPORTERS ON RANDOM BASIS WITHOUT ANY CONTRACT WITH THEM. THESE TRANSPORTERS HAVE GIVEN STATUTORY F O R M 15 - I TO THE ASSESSE FOR NOT DEDUCTING THE TAX ON THE PAYMENT MADE TO THEM. IT WAS IN PURSUANCE OF THIS REQUEST AND STATUTORY FORM , THAT T HE ASSESSE HAS NOT DEDUCTED TDS, HENCE THE ASSESSE E CANNOT BE HELD TO BE IN DEFAULT FOR NOT DEDUCTING THE TDS. HE FURTHER SUBMITTED THAT ON SIMILAR FACTS AND ISSUE , HON BLE GUJARAT HIGH COURT IN CIT VS. VALIBHAI , KHAN BHAI MANKAD , IN (2013) 92 DTR (GUJ) 267 , HELD THAT IF THE PAYMENT OF HIRE CHARGES TO SUBCONTRACTORS HAS BEEN MADE AFTER OBTAINING FORM NO. 15 - I THEN EVEN IF , THERE IS DELAY IN FILING OF FORM 15J , THERE COULD NOT BE ANY FAILURE ON THE PART OF THE ASSESSE FOR DEDUCTING THE TAX U/S 194C AND THEREFORE , DISALLOWANCE U/S 40(A)(IA) CANNOT BE MADE. THUS THE ADDITION HAS RIGHTLY BEEN DELETED BY THE LD.CIT(A). REGARDING SECOND ISSUE, HE STRONGLY RELIED UPO N THE ORDER OF THE LD.CIT(A). 7. WE HAVE HEARD THE RIVAL SUBMISSION S , PERUSED THE RELEVANT FINDINGS GIVEN IN THE IMPUGNED ORDERS. THE ASSESSE HAS MADE THE PAYMENT S TO THE VARIOUS TRANSPORTERS TOWARDS TRANSPORTATION CHARGES FOR THE PURPOSE OF HIS BUSINESS OF TRANSPORTATION OF GOODS. ITA NO. 4603/MUM/2011 SHRI BRAHMADEV D. SHUKLA ASSESSMENT YEAR: 2007 - 08 7 THESE TRANSPORTERS ARE KIND OF SUBCONTRACTORS WHO ARE ENGAGED BY THE ASSESSEE ON RANDOM BASIS FOR TRANSPORTATION OF THE GOODS. THESE PARTIES HAVE GIVEN , FROM 15 - J AT THE TIME OF THE PAYMENT TO THE ASSESSE E, THAT NO TDS SHOULD BE DEDUCTED. IN PURSUANCE OF SUCH FORM, THE ASSESSE E HAS NOT DEDUCTED THE TDS U/S 194C . E VEN THOUGH THE ASSESSE E HAS NOT FURNISHED FO R M 15 - J , INTIMATING TO THE INCOME AUTHORITIES AFTER RECEIVING FORM 15 - I FROM THE PARTIES, IT CANNOT BE HELD THAT FOR THE PU RPOSE OF U/S 194C , ASSESSE WAS IN DEFAULT. THIS HAS BEEN SPECIFICALLY PROVIDED IN SUBSECTION 3 OF SECTION 194 C READ WITH PROVISO. EXACTLY SIMILAR MATTER HAS BEEN DEALT BY THE HON BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. VALI BHAI, KHAN BHAI, MANKAD (S UPRA) , WHEREIN THE HON BLE HIGH COURT HAD OBSERVED AND HELD AS UNDER: 6. SEC. 194C, AS ALREADY. NOTICED, MAKES PROVISION WHERE FOR C ERTAIN PAYMENTS, LIABILITY OF THE PAYER TO DEDUCT TAX AT SOURCE ARISES. THEREFORE, IF THERE IS ANY BREACH OF SUCH REQUIRE MENT, QUESTION OF APPLICABILITY OF S. 40 (A)(IA) WOULD ARISE. DESPITE SUCH CIRCUMSTANCES EXISTING, SUB - SO (3) MAKES EXCLUSION IN CASES WHERE SUCH LIABILITY WOULD NOT ARISE. WE ARE CONCERNED WITH THE FURTHER PROVISO TO SUB - SO (3), WHICH PROVIDES THAT NO DED UCTION UNDER SUB - SO (2 SHALL BE MADE FROM THE AMOUNT OF ANY SUM CREDITED OR PAID OR LIKELY TO BE CREDITED OR PAID TO THE SUB - CONTRACTOR DURING THE COURSE OF BUSINESS OF PLYING, HIRING OR LEASING GOODS CARRIAGES, ON PRODUCTION OF A DECLARATION TO THE PERSON CONCERNED PAYING OR CREDITING SUCH SUM IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER WITHIN THE TIME AS MAY BE PRESCRIBED, IF SUCH SUB - CONTRACTOR IS AN INDIVIDUAL WHO HAS NOT OWNED MORE THAN TWO GOODS CARRIAGES AT ANY TIME DURING THE PREVIO US YEAR. 7. THE EXCLUSION PROVIDED IN SUB - SO (3) OF S. 194C FROM THE LIABILITY TO DEDUCT TAX AT SOURCE UNDER SUB - SO (2) WOULD THUS BE COMPLETE THE . MOMENT THE REQUIREMENTS CONTAINED THEREIN ARE SATISFIED. SUCH REQUIREMENTS. PRINCIPALLY. ARE THAT THE SU B - ITA NO. 4603/MUM/2011 SHRI BRAHMADEV D. SHUKLA ASSESSMENT YEAR: 2007 - 08 8 CONTRACTOR. RECIPIENT OF THE PAYMENT PRODUCES A NECESSARY DECLARATION IN THE PRESCRIBED FORMAT AND FURTHER THAT SUCH SUB - CONTRACTOR DOES NOT OWN MORE THAN TWO GOODS CARRIAGES DURING THE ENTIRE PREVIOUS YEAR. THE MOMENT SUCH RE QUIREMENTS ARE FULFILLED. TH E LIABILITY OF THE ASSESSEE TO DEDUCT TAX ON THE PAYMENTS MADE OR TO BE MADE TO SUCH SUB - CONTRACTORS WOULD EASE. IN FACT HE WOULD HAVE NO AUTHORITY TO MAKE ANY SUCH DEDUCTION. 8. THE LATER PORTION OF SUB - SO (3) WHICH FOLLOWS THE FURTHER . PROVISO IS A R EQUIREMENT WHICH WOULD ARISE AT A MUCH LATER POINT OF TIME: SUCH REQUIREMENT IS THAT THE PERSON RESPONSIBLE FOR PAYING SUCH SUM TO THE. SUB - CONTRACTOR HAS TO FURNISH SUCH 'PARTICULARS AS PRESCRIBED. WE MAY NOTICE THAT UNDER R. 29D OF THE RULES. SUCH DECLAR ATION HAS TO BE MADE BY THE END OF JUNE OF THE NEXT ACCOUNTING YEAR IN QUESTION. 9. IN OUR VIEW, THEREFORE. ONCE THE CONDITIONS OF FURTHER PROVISO OF S. 194C(3) ARE SATISFIED. THE LIABILITY OF THE PAYER TO DEDUCT TAX AT SOURCE WOULD CEASE. THE REQUIREMEN T OF SUCH PAYER TO FURNISH DETAILS TO THE IT 'AUTHORITY IN THE PRESCRIBED. FORM WITHIN PRESCRIBED TIME WOULD ARISE LATER AND ANY INFRACTION IN SUCH A REQUIREMENT WOULD NOT MAKE THE REQUIREMENT OF DEDUCTION AT SOURCE APPLICABLE UNDER SU B S. (2) OF S. 194C OF THE ACT. IN OUR VIEW, THEREFORE. THE TRIBU NAL WAS PERFECTLY JUSTIFIED IN TAKING THE VIEW IN THE IMPUGNED JUDGMENT. IT MAY BE THAT FAILURE TO COMPLY SUCH REQUIREMENT BY THE PAYER MAY RESULT INTO SOME OTHER ADVERSE CONSEQUENCE - IF SO PR OVIDED UNDER THE A CT. HOWEVER , \ NON- FULFIL L MENT OF SUCH REQUIREMENT CANNOT BE L INKED TO THE DECLARATION (SIC D EDUCTION) OF TAX AT SOURCE. ANY SUCH FAILURE THEREFORE CANNOT BE VISUALIZED BY ADVERS E CONSEQUENCES PROVIDED UNDER S . 40(A)(IA) OF THE ACT. 10 .. WHEN ON THE BAS I S OF THE RECORD IT IS NOT DISPUTED THAT. THE REQUIREMENTS OF FURTHER PROVISO WERE FULFILLED, THE' ASSESSEE WAS .NOT REQUIRED TO MAKE ANY DEDUCTION AT SOURCE EM THE PAYMENTS. MADE TO THE SUB - CONTRACTORS. IF THAT BE OUR CONCLUS ION. APPLICATION OF S. 40(A)(I A) WOULD NOT ARISE SINCE. AS ALREADY NOTICED, S. 40(A)(IA) WOULD APPLY WHEN HERE . IS A. REQUIREMENT OF DEDUCTION OF TAX AT SOURCE AND SUCH REQUIREMENT IS EITHER NOT FULFILLE D OR HAVING DEDUCTED TAX AT SOURCE IS NOT DEPOSITED WITHIN PRESCRIBED TIME. ITA NO. 4603/MUM/2011 SHRI BRAHMADEV D. SHUKLA ASSESSMENT YEAR: 2007 - 08 9 THE AFORESAID DECISION AND THE RATIO WILL ALSO APPLY ON THE FACTS OF THE ASSESSEE S CASE AS THE ASSESSEE WAS NOT AT DEFAULT FOR DEDUCTION OF TAX AT SOURCE. IT CANNOT BE HELD THAT, DESPITE RECEIVING FORM 15 - I FROM THE PARTIES, ASSESSEE SHOULD HAVE IGNORED THESE FORMS AND DEDUCTED TAX. ACCORDINGLY, WE HOLD THAT NO DISALLOWANCE U/S 40(A)(IA) CAN BE MADE. THUS THE GROUND NO. 1 AS RAISED BY THE REVENUE IS DISMISSED , THOUGH ON A DIFFERENT REASONING AS GIVEN BY THE LD.CIT(A). 8. NOW COMING TO THE DELETION OF RS.1,11 ,559/ - BY THE LD.CIT(A) . FROM THE PERUSAL OF THE ASSESSMENT ORDER, WE FIND THAT THE ASSESSING OFFICER HAS MADE DETAIL INQUIRY TO VERIFY THE GENUINENESS OF THE PURCHASE OF RS.22,31,182/ - MADE FROM M/S. ABHIRAJ SALES CORPORATION. SUCH AN INQUIRY INCLUDED , SE NDING OF NOTICE U/S 133(6) ON THE ADDRESS GIVEN BY THE ASSESSE E AND ALSO BY DEPUTING THE ITI FOR VERIFYING THE TRANSACTION. ON SUCH AN INQUIRY, NEITHER THE PURCHASES COULD BE CONFIRMED NOR THE ASSESSE E COULD FILE ANY CONFIRMATION OR DETAILS FROM SUCH A PAR TY . THIS ITSELF WAS A GOOD GROUND FOR REJECTING THE BOOK RESULT AS THE PURCHASE WAS NOT VERIFIABLE . EVEN THE ASSESSE E BEFORE THE ASSESSING OFFICER, ADMITTED THAT APPROPRIATE GP RATE MAY BE CONSIDERED IN RESPECT FOR SUCH PURCHASES FOR MAKING THE ADDITION. T HE ASSESSING OFFICER ON THESE FACTS HAS RIGHTLY MADE THE ADDITION AFTER APPLYING GP RATE OF 5% OF RS.22,31,182/ - . THE REASONING OF THE LD.CIT(A) BY PUTTING THE ENTIRE ONUS UPON THE ASSESSING OFFICER TO PROVE THE GENUINENESS OF THE TRANSACTION IS NOT CORREC T , AS THE ASSESSE E HAS FAILED TO DISCHARGE HIS PRIMARY ONUS OF FILING THE CONFIRMATION. ITA NO. 4603/MUM/2011 SHRI BRAHMADEV D. SHUKLA ASSESSMENT YEAR: 2007 - 08 10 THUS , THE FINDING OF THE LD.CIT(A) IS REVERSED ON THIS SCORE AND THE ADDITION MADE BY THE AO OF RS.1,11,559/ - IS SUSTAINED . ACCORDINGLY GROUND NO. 2 IS ALLOWED. 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS PARTLY ALLOWED . ORDER PRONO UNCED IN THE OPEN COURT ON THIS 28 TH DAY OF NOV . , 2014. SD/ - SD/ - ( D.KARUNAKAR RAO ) ( AMIT SHUKLA ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: . 11 .2014 *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR B BENCH // TRUE COPY // BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.