ACIT, Jaipur V. GUPTA EMERALD MINES PVT LTD., MUMBAI

ITA 881/JPR/2014

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6407 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 6 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 24-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SEEMA MEENA
• Assessee Lawyers: S L PODDAR ADV DHK
• Keywords: Bogus purchase; Search and seizure; Accommodation entries
• Section: 143(3); 153A; 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NO. 881/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2005-06 THE ACIT, CENTRAL CIRCLE- 1, JAIPUR. CUKE VS. M/S GUPTA EMERALD MINES PVT. LTD., METRO HOUSE, II FLOOR, M. G. ROAD, MUMBAI. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAACG 1223 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SMT. SEEMA MEENA (JCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.L. PODDAR (ADV.) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 10/04/2018 MN?KKS'K.KK DH RKJH[K@ DATE OF PRONOUNCEMENT: 06/07/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 29.10.2014 OF LD. CIT(A), JAIPUR ARISING FROM THE P ENALTY ORDER PASSED U/S 271(1)(C) OF THE I.T. ACT FOR THE ASSESSMENT YE AR 2005-06. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDER OF THE LD. CIT(A)(C), JAIPUR IS JUSTIFIED IN DELETING THE PENALTY OF RS. 17,20,000/- IMPOSED BY THE AO U/S 271(1)(C) OF THE ACT. ITA NO. 881/JP/2014 ACIT VS. M/S GUPTA EMERALD MINES PVT. LTD. 2 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDER OF THE LD. CIT(A)(C), JAIPUR IS J USTIFIED IN DELETING THE PENALTY THOUGH THE FINDING OF THE AO T HAT ASSESSEE WAS REDUCING CORRECT PROFIT BY MAKING BOGUS PURCHAS ES, HAS BEEN CONFIRMED BY THE LD. CIT(A)(C) , HERSELF. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDER OF THE LD. CIT(A)(C), JAIPUR IS J USTIFIED HOLDING THAT PENALTY U/S 271(1)(C), CANNOT BE IMPOSED ON ES TIMATED ADDITIONS DESPITE THE VARIOUS JUDGMENTS OF HONBLE HIGH COURTS MENTIONED BY THE AO IN THE PENALTY ORDER IN WHICH C ONCEALMENT PENALTY ON ADDITIONS BASED ON ESTIMATION HAS BEEN U PHELD. 4. THE APPELLANT CRAVES THE RIGHT TO AMEND ALTER OR ADD TO ANY OF THE GROUNDS OF APPEAL GIVEN ABOVE. 2. THE BRIEF FACTS EMERGING FROM RECORD LEADING TO LEVY OF PENALTY ARE THAT THE ORIGINAL RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 06.12.2006 DECLARING LOSS AT RS. 1,86,758/-. THEREA FTER A SEARCH AND SEIZURE OPERATION WAS CARRIED OUT ON 20.05.2009 IN THE CASE OF THE ASSESSEE GROUP. PURSUANT TO THE SEARCH AND SEIZURE ACTION A NOTICE U/S 153A OF THE ACT WAS ISSUED ON 22.07.2011. IN RESPON SE TO THE NOTICE THE ASSESSEE FILED A RETURN OF INCOME DECLARING LOS S AT RS. 1,86,758/- AS IT WAS DECLARED IN THE ORIGINAL RETURN OF INCOME. T HE ASSESSMENT U/S 143(3) R.W.S. 153A WAS COMPLETED ON 05.12.2011 AT A TOTAL INCOME OF RS. 50,45,040/- AS A RESULT OF TRADING ADDITION OF RS. 52,96,336/- WAS MADE BY THE AO. THEREAFTER THE PENALTY ORDER HAS BE EN PASSED BY THE ITA NO. 881/JP/2014 ACIT VS. M/S GUPTA EMERALD MINES PVT. LTD. 3 AO IMPOSING A PENALTY OF RS. 17,20,000/- U/S 271(1) (C) OF THE ACT ON 10.03.2014. THE ASSESSEE CHALLENGED THE ORDER OF IM POSING PENALTY BEFORE THE LD. CIT(A) AND CONTENDED THAT IN THE QUA NTUM PROCEEDING THE AO HAS MADE AN ADDITION BY ESTIMATING THE INCOM E AT GP RATE 17% WHICH WAS RESTRICTED BY THE LD. CIT(A) TO 15% RESUL TING THE TRADING ADDITION SUSTAINED AT RS. 46,96,846/-. THUS, IT WAS CONTENDED BEFORE THE LD. CIT(A) THAT THE ADDITION MADE ON ESTIMATION BASIS WITHOUT ANY DOCUMENTARY EVIDENCE REGARDING SUPPRESSION OF SALES OR INFLATING PURCHASE NO PENALTY CAN BE LEVIED U/S 271(1)(C) OF THE ACT. THE ASSESSEE HAS ALSO PLACED RELIANCE ON THE DECISION O F THE HONBLE JURISDICTIONAL HIGH COURT. THE LD. CIT(A) DELETED T HE PENALTY ON THE GROUND THAT WITHOUT ANY SPECIFIC INCRIMINATING DOCU MENT FOUND DURING THE SEARCH THE PENALTY IS NOT SUSTAINABLE. 3. BEFORE US, THE LD. DR HAS SUBMITTED THAT IT WAS A CASE OF ACCOMMODATION ENTRIES ON ACCOUNT OF PURCHASE MADE B Y THE ASSESSEE FROM SEVERAL PARTIES. THEREFORE, WHEN THE AO HAS GI VEN A FINDING THAT THE PURCHASES SHOWN BY THE ASSESSEE ARE NOT GENUINE BECAUSE AS MANY AS 10 PARTIES WERE FOUND TO BE PROVIDING ACCOM MODATION ENTRIES AND HENCE, THE PURCHASES OF THE ASSESSEE COULD NOT SUBJECT TO PROPER VERIFICATION. THE LD. DR HAS FURTHER SUBMITTED THAT IT IS NOT A SIMPLE CASE ITA NO. 881/JP/2014 ACIT VS. M/S GUPTA EMERALD MINES PVT. LTD. 4 OF ESTIMATION OF INCOME BY THE AO BUT IT IS A CASE OF UNVERIFIABLE PURCHASES SHOWN BY THE ASSESSEE FROM THE PARTIES WH O ARE FOUND TO BE PROVIDING ACCOMMODATION ENTRIES. IN SUPPORT OF HER CONTENTION SHE HAS RELIED UPON THE DECISIONS OF HONBLE SUPREME COURT IN CASE OF UNION OF INDIA VS. DHARAMENDRA TEXTILE PROCESSORS 306 ITR 27 7 AS WELL AS THE DECISION OF THE COORDINATE BENCHES OF THIS T RIBUNAL IN CASE OF ITO VS. BHANSALI TRADING CORPORATION 42 ITR(T)254 . SHE HAS RELIED UPON THE ORDER OF THE ASSESSING OFFICER. 4. ON THE OTHER HAND, LD. AR OF THE ASSESSEE HAS SU BMITTED THAT NO INCRIMINATING DOCUMENT WAS FOUND DURING SEARCH AND SEIZURE OPERATION IN THE CASE OF THE ASSESSEE TO SHOW THAT THE ASSESS EE HAS CLAIMED BOGUS PURCHASES. THE STAND OF THE AO REGARDING ACCO MMODATION ENTRIES IS NOT BASED ON SEARCH CONDUCTED AT THE ASS ESSEES CASE BUT IT BASED ON SEARCH AND SEIZURE ACTION IN CASE OF M/S C LARITY GOLD PVT. LTD. THE LD. AR HAS FURTHER SUBMITTED THAT THE AO ESTIMA TED THE INCOME OF THE ASSESSEE BY APPLYING 17% GROSS PROFIT WHICH WAS RESTRICTED BY THE LD. CIT(A) IN QUANTUM APPEAL TO 15%. THEREFORE, THE ADDITION SUSTAINED IN THE QUANTUM APPEAL IS BASED ONLY ON ESTIMATION A ND THEREFORE, NO PENALTY CAN BE LEVIED AGAINST SUCH ADDITION. IN SUP PORT OF HIS CONTENTION HE HAS RELIED UPON THE DECISION OF HONBLE JURISDIC TIONAL HIGH COURT IN ITA NO. 881/JP/2014 ACIT VS. M/S GUPTA EMERALD MINES PVT. LTD. 5 CASE OF MALPANI HOUSE OF STONES VS. CIT IN D.B. ITA NO. 341/2005 VIDE ORDER DATED 01.03.2017 AND SUBMITTED THAT THE HONBLE HIGH COURT HAS DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. IN THE CASE OF THE ASSESSEE THE RE WAS A SEARCH U/S 132(1) OF THE ACT ON 20.05.2009. DURING THE COURSE OF SEARCH AND SEIZURE OPERATION STATEMENT OF THE DIRECTOR OF THE ASSESSEE WAS RECORDED. UNDISPUTEDLY NO INCRIMINATING DOCUMENT WA S FOUND TO SHOW BOGUS PURCHASES HOWEVER, THE STATEMENT OF SHRI ANIL KUMAR LALWANI WAS CONFRONTED WITH SHRI KHUSHI KUMAR AMERIYA THE D IRECTOR OF THE ASSESSEE. ON THE BASIS OF THESE STATEMENTS THE AO D URING THE ASSESSMENT U/S 143(3) R.W.S. 153A OF THE ACT REJECT ED THE BOOKS OF ACCOUNTS U/S 145(3) OF THE ACT AND THEN ESTIMATED T HE INCOME OF THE ASSESSEE BY APPLYING GP @ 17% WHICH HAS RESULTED A TRADING ADDITION OF RS. 52,96,336/-. IN THE APPEAL AGAINST THE ASSES SMENT ORDER THE LD. CIT(A) HAS RESTRICTED THE TRADING ADDITION BUT BY A PPLYING 15% GP RATE INSTEAD OF 17%. THUS, IT IS CLEAR THAT THE INCOME W AS ESTIMATED BY THE AO WITHOUT ANY INCRIMINATING MATERIAL EXCEPT THE ST ATEMENT RECORDED DURING SEARCH. THE LD. CIT(A) HAS CONSIDERED THE LE VY OF PENALTY IN PARA 4.3 OF THE IMPUGNED ORDER AS UNDER:- ITA NO. 881/JP/2014 ACIT VS. M/S GUPTA EMERALD MINES PVT. LTD. 6 4.3 I HAVE CAREFULLY PERUSED THE ORDER OF THE AO AND SUBMISSIONS OF THE AR OF THE APPELLANT AND CONCUR W ITH THE SUBMISSIONS OF THE AR OF THE APPELLANT ON THE FOLLO WING GROUNDS: I) THE FACTS OF THE CASE ARE THAT: A) THE SEARCH AND SEIZURE OPERATIONS WERE CARRIED OUT AT BUSINESS AND RESIDENTIAL PREMISES OF THE ASSESSEE GROUP ON 2 0.5.2009. B) THE ASSESSEE HAD FILED ITS RETURN U/S 139 OF IT ACT ON 6.12.2006 DECLARING LOSS OF RS. 1,86,7583/- AND SUBSEQUENT TO THE SEARCH A RETURN WAS FILED IN RESPONSE TO NOTICE U/S 153A ON 22.7.2011 DECLARING TOTAL LOSS OF RS. 1,86,758/-. C) AN ASSESSMENT U/S 143(3)/ 153A WAS COMPLETED ON 5.12.2011 DETERMINING THE INCOME AT RS. 50,45,040/- AFTER MAK ING AN ADDITION OF RS. 52,96,336/-. PENALTY PROCEEDINGS FOR FURNISH ING INACCURATE PARTICULARS AND CONCEALMENT OF INCOME WERE INITIATE D UNDER SEC. 271(1) ON 5.12.2011. D) THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT( A). THE LD CIT(A) VIDE HIS COMBINED ORDER, ITA NO. 382 AND 383 /2011-12, DATED 21.2.2013 FOR A.Y. 2005-06 AND 2006-07 CONFIR MED THE PREMISES OF THE AO IN THE ASSESSMENT ORDER BUT RED UCED THE TRADING ADDITION MADE BY THE AO BY ESTIMATING THE GP RATE A T 15% RESULTING IN A SUSTENANCE OF TRADING ADDITION AT RS. 46,96,84 6/-. E) PENALTY U/S 271(1)(C) WAS IMPOSED VIDE ORDER DAT ED 10.3.2014 HOLDING THE ASSESSEE GUILTY OF CONCEALMENT OF INCOM E BY WAY OF MAKING BOGUS PURCHASES AND REDUCING CORRECT PROFIT EARNED. II) THE AO OBSERVED IN THE ASSESSMENT ORDER THAT DU RING THE COURSE OF SEARCH, SH. K.K. AMERIYA, THE MANAGING DI RECTOR OF THE JAIPUR BRANCH OF THE CONCERN HAD CATEGORICALLY ADMI TTED THAT BOGUS BILLS WERE BEING OBTAINED FROM SOME OF THE CONCERNS WHIT HAD BEEN FOUND TO BE ENTRY PROVIDERS DURING THE COURSE OF SU RVEY BY THE BCTT ITA NO. 881/JP/2014 ACIT VS. M/S GUPTA EMERALD MINES PVT. LTD. 7 WING OF THE DEPARTMENT. IT WAS FURTHER OBSERVED THA T EVIDENCE WAS FOUND DURING THE COURSE OF SEARCH THAT THERE WAS SU PPRESSION OF TURNOVER IN A.Y. 2007-08. THE ESTIMATION OF THE GP AT 17% BY THE AO WAS BASED ON THE CASE OF THE SISTER CONCERN NAMELY M/S CLARITY GOLD PVT. LTD . AND GEM MART PVT. LTD. WHO WERE ALSO ENGAGED IN THE SAME BUSINE SS AND ALSO ON THE FACT THAT ASSESSEE HAD HIMSELF SHOWN A GP RATE OF 18% IN A.Y. 2009-10. III) THE CIT(A) CONFIRMED THE OBSERVATIONS OF THE A O REGARDING THE ADMISSION BY SH. K.K. AMERIYA OF BOGUS PURCHASES HA VING BEEN MADE BY THE DIFFERENT CONCERNS OF THE GROUP AND THAT CER TAIN DOCUMENTS WERE SEIZED PERTAINING TO A.Y. 2007-08 TO SHOW THAT THE ASSESSEE HAD SUPPRESSED HIS TURNOVER DURING THAT A.Y. AND ON THE BASIS OF 'THESE PIECES OF EVIDENCE THE GP RATE WAS ESTIMATED AT 15% PURSUANT TO A SIMILAR - FINDING IN THE CASE OF M/S CLARITY GOLD PVT. LTD. ON SAINT FACTS. IV) ON PERUSAL OF THE ORDER OF CIT(A), IT IS SEEN T HAT ON PAGE 12 PARA 8.1(II) THE LD. CIT(A) HAS OBSERVED THAT SH. K .K. AMERIYA ADMITTED THAT BOGUS BILLS WERE OBTAINED FR . PM DIFFERENT FIRMS SINCE F.Y. 2005-06 THAT IS A.Y. 2006-07 AND NOT A.Y. 2005 -06 I.E. THE YEAR UNDER CONSIDERATION. SIMILARLY THE DOCUMENTARY EVIDENCE REGARDING SUPPRESSION OF SALES PERTAINED TO A.Y. 20 07-08. IN SHORT; NO SPECIFIC INCRIMINATING EVIDENCE WAS GATHE RED REGARDING BOGUS PURCHASES FOR THIS, A.Y. DURING THE COURSE OF THE SEARCH EITHER BY WAY OF STATEMENT OR DOCUMENT. THEREFORE, THE EXPLANATION-5A TO SEC. 271(1)(C) IS NOT APPLICABLE TO THE FACTS OF THE CASE OF THE APPELLANT FOR THIS A.Y. HOWEVER, IT HAS BEEN MENTIONED THAT THERE WERE CERTAIN PARTIES THAT WERE FOUND TO BE BOGUS ENTRY PROVIDERS. THE AO HAS NOTED THAT PURCHA SES HAD BEEN MADE FROM FOUR PARTIES THAT HAD BEEN ISSUING BOGUS BILLS IN THE CASE OF M/S CLARITY GOLD PVT. LTD. THEREFORE, AN ES TIMATED TRADING ADDITION WAS MADE OF R. 52,96,336/- BY APPLYING A G P RATE OF 17%. ITA NO. 881/JP/2014 ACIT VS. M/S GUPTA EMERALD MINES PVT. LTD. 8 IT IS PERTINENT TO NOTE THAT THE HON. ITAT JAIPUR B ENCH VIDE ITS ORDER IN THE CASE OF CLARITY GOLD PVT. LTD. FOR A.Y. 2005 -06 TO 2009-10 DATED 5.3.2014-HAS DELETED THE ENTIRE TRADING ADDITION MA DE ON THE SAME FACTS RELIED UPON BY THE AO FOR MAKING THE TRADING ADDITION IN THE CASE OF THE APPELLANT. SECONDLY, IN ABSENCE OF ANY SPECIFIC EVIDENCE EITHE R BY WAY OF STATEMENT U/S 132(4) OR DOCUMENTARY EVIDENCE PERTAI NING TO THIS A.Y. THE PROVISIONS OF EXPLATION-5A OF SEC. 271(1)(C) AR E NOT APPLICABLE TO THE FACTS OF THE CASE. INSTEAD THE OBSERVATIONS OF HON. JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. KRISHI TYRE AND R ETREADING AND RUBBER INDUSTRIES (2014) 44 TAXMANN.COM 9 (RAJ) ARE APPLICABLE TO THE FACTS OF THE CASE. THE HON. HIGH COURT HAS OBSE RVED AS FOLLOWED: 3. BRIEF FACTS MAY BE OBSERVED THAT THE RESPONDENT IS A REGISTERED FIRM AND IS ENGAGED IN RETREADING OF OLD (WORN OUT) TYRES OF ALL VEHICLES. BESIDES THE JOB WORK, THE RESPONDENT-ASSE SSEE WAS ALSO SELLING SUCH RAW MATERIAL TO LOCAL PARTIES. A SURVE Y OPERATION CAME TO BE CARRIED OUT AT THE BUSINESS PREMISES OF THE RESP ONDENT ON NOVEMBER 16, 1995, WHERE SOME DOCUMENTS WERE FOUND, WHICH, ACCORDING TO THE ASSESSING OFFICER, WAS NOT SATISFA CTORILY EXPLAINED AND, ACCORDINGLY, ON ACCOUNT OF THE SAID DISCREPANC IES, AN ESTIMATED ADDITION WAS MADE OF RS. 1,44,000. THE RESPONDENT P REFERRED AN APPEAL AGAINST THE SAID ADDITION OF RS. 1,44,000, W HICH CAME TO BE SUSTAINED BY THE COMMISSIONER OF INCOME-TAX (APPEAL S) AND ON FURTHER CHALLENGE BEFORE THE INCOME-TAX APPELLATE T RIBUNAL, THE TRIBUNAL MODIFIED THE ORDER PASSED BY THE LOWER AUT HORITIES AND RESTRICTED THE ADDITION TO RS. 1,00,000 BY, INTER A LIA, PREFERRING TO THE FACT THAT THE ADDITION WAS MADE ON ESTIMATE BASIS B Y LOWER AUTHORITIES AND LOOKING TO THE FACTS ON RECORD AND THE EXPLANATION OF THE ASSESSEE, PART RELIEF OF RS. 44,000 WAS GRANTED , THEREBY SUSTAINING AN ADDITION OF RS. 1,00,000 ON ESTIMATE BASIS 9 ON A PERUSAL OF THE FACTS STATED HEREINBEFOR E, IT TRANSPIRED THAT THE ADDITION HAS BEEN SUSTAINED PURELY ON ESTI MATE BASIS AND, IN ITA NO. 881/JP/2014 ACIT VS. M/S GUPTA EMERALD MINES PVT. LTD. 9 OUR VIEW, NO POSITIVE FACT OR FINDING HAS BEEN FOUN D SO AS TO EVEN MAKE THE SAID ADDITION. IT IS, ACCORDING TO US, A P URE GUESS WORK AND, IN OUR VIEW, ON SUCH GUESS WORK OR ESTIMATION, NO P ENALTY UNDER SECTION 271(1)(C) OF THE ACT CAN BE SAID TO BE LEVI ABLE. FOR IMPOSING PENALTY UNDER SECTION 271(1)(C) OF THE ACT, THE ASS ESSING OFFICER HAS TO CLEARLY PROVE THE CONDUCT OF THE ASSESSEE, WHICH IN THIS CASE, HAS NOT BEEN PROVED. MERELY BECAUSE THE BOOKS OF ACCOUN T OF THE ASSESSEE WERE REJECTED OR ESTIMATED ADDITION WAS MA DE, IN OUR VIEW, NO PENALTY IS LEVIABLE. THE ASSESSEE OFFERED AN EXP LANATION, WHICH COULD NOT BE TERMED AS NOT BONA FIDE. IN THE ABSENC E OF ANY CORROBORATIVE EVIDENCE TO PROVE THE CHARGE OF CONCE ALMENT, IN OUR VIEW, THE PENALTY COULD NOT BE IMPOSED. THE FACTS OF THE CASE OF THE APPELLANT ARE SAME. PU RCHASES WERE MADE FROM FOUR PARTIES WHO WERE HELD TO BE ENTRY PR OVIDERS. THEREAFTER GP RATE WAS ESTIMATED. SINCE THE ADDITIO N WAS MADE ON ESTIMATION BASIS BY THE AO WHICH WAS FURTHER REDUCE D BY CIT(A) ON ESTIMATION AND NO SPECIFIC INCRIMINATING DOCUMENTS WERE FOUND DURING THE SEARCH PERTAINING TO THIS A.Y., PENALTY U/S 271 (1)(C) CANNOT BE IMPOSED ON SUCH ESTIMATED ADDITIONS IN THE CASE OF THE APPELLANT. GIVEN THE FACTS OF THE CASE DISCUSSED IN DETAIL ABO VE AND THE LAW APPLICABLE TO THOSE FACTS, THE PENALTY OF RS. 17,20 ,000/- U/S 271(1) FOR CONCEALMENT OF INCOME IS DELETED. THE FACTS RECORDED BY THE LD. CIT(A) ARE NOT IN DI SPUTE AND THEREFORE, WHEN THE ADDITION IN THE QUANTUM PROCEEDING IS BASE D ON ESTIMATION THEN THE DECISION OF HONBLE JURISDICTIONAL HIGH CO URT IN CASE OF CIT VS KRISHI TYRE AND RETREADING AND RUBBER INDUSTRIES 44 TAXMANN.COM 9 AS FOLLOWED BY THE LD. CIT(A) AS WELL AS DECISION IN ITA NO. 881/JP/2014 ACIT VS. M/S GUPTA EMERALD MINES PVT. LTD. 10 CASE OF MALPANI HOUSE OF STONES VS. CIT (SUPRA) ARE APPLICABLE IN THE CASE BEFORE US. THE HONBLE HIGH COURT IN THE CASE OF MALPANI HOUSE OF STONES VS. CIT AFTER CONSIDERING THE VARIOUS DECISI ONS HAS HELD IN PARAS 11 AND 12 AS UNDER:- 11. WE HAVE HEARD COUNSEL FOR BOTH THE SIDES. 12. TAKING INTO CONSIDERATION THE OBSERVATIONS WHIC H ARE MADE BY THE ASSESSING OFFICER, CIT(A) AND THE TRIBUNAL, THE EXPENSES OR THE CREDITS WHICH WERE SHOWN BY THE CREDITORS CANNO T BE PROVED, THEREFORE, NO SUBSTANTIAL TAX IS PAID. THEREFORE, I N THAT VIEW OF THE MATTER, ON THE BASIS OF THE OBSERVATIONS MADE B Y THE DELHI HIGH COURT AND GUJARAT HIGH COURT, IN OUR VIEW, THE ISSUE IS REQUIRED TO BE ANSWERED IN FAVOUR OF THE ASSESSEE A ND AGAINST THE DEPARTMENT. 12.1 THEREFORE, THE ISSUE IS ANSWERED IN FAVOUR OF THE ASSESSES AND AGAINST THE DEPARTMENT. 6. AS REGARDS THE DECISION RELIED UPON BY THE LD. D R, WE ARE OF THE VIEW THAT WHEN THE ADDITION IS NOT BASED ON ANY INC RIMINATING DOCUMENTS OR EVIDENCE THEN THE DECISIONS COULD NOT HELP THE CASE OF THE DEPARTMENT. ACCORDINGLY, IN VIEW OF THE ABOVE F ACTS AND CIRCUMSTANCES OF THE CASE, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE IMPUGNED ORDER OF THE LD. CIT(A) QUA THIS ISSUE. IN THE RESULT, THE REVENUE APPEAL IS DISMISSED. ITA NO. 881/JP/2014 ACIT VS. M/S GUPTA EMERALD MINES PVT. LTD. 11 ORDER PRONOUNCED IN THE OPEN COURT ON 06/07/2018. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 06/07/2018. *SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- ACIT, CENTRAL CIRCLE-1, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- M/S GUPTA EMERALD MINES PVT. LTD., MUMBAI. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 881/JP/2014} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR