M/S. BHAIRAV TUBE (INDIA ),MUMBAI vs. INCOME TAX OFFICER WD19(1) (2) , MUMBAI

2. Briefly stated the learned assessing officer reopened the assessment for the impugned assessment year and made an addition of ₹ 1,722,871/- being 12.5% of Rs 1, 37,82,968/– being bogus purchases from 14 different parties which is confirmed by the learned CIT – A “1. Delay in filling of this appeal may be condone as per an application with prayer to condone the delay, and an Affidavit executed by partner of the firm in support of an application with prayer to condone the delay considering the facts and circumstances of the case and highly oblige. It may be noted that Learned CIT(A)-A, Mumbai should have served the appeal order by electronic mode on mail address of the Appellant and of C.A. which are available on record with the authorities. Even an appeal in Form-35 was submitted by e-filing, hence CIT(A) ought to have mail address of the appellant.

4. Materials, documents, information‟s, investigation report, affirmations, depositions, statements, affidavits etc. given by 14 parties are not available on the assessment record of Assessing Officer and if at all available on record have not been provided to the Appellant but used against the Appellant for initiationof reassessment proceedings, and for making additions, this conduct on the part of Assessing Officer would render this order being in violation of risks of natural justice and for the reasons the order passed by Assessing Officer may not be sustained and may be annulled and/or set aside with direction to delete the additions made by him and sustained by

5. It is well settled law that when authority is relying on the statement of entry providers they are the approvals/witnesses of the department shah incriminating materials and evidences must be provided to the assessee for repulate with opportunity to cross examine of entry provider by assessee failing which additionally cannot be sustained.

6. Appellant has provided the materials, documents, evidences i.e. Tax Invoices and challans issued by 14 parties which bear the TIN numbers, PAN numbers and Certificates that their TIN number are valid and in force on the day of sales effected to the Appellant, identification statement of sales effected again the purchases effected from 14 parties, their ledger accounts copies showing payments made to then by „Payees A/c Cheese only and Bank Statements in support of the payments. Thus Appellant has discharged has initial burden by providing all the materials in respect of purchases effected from 14 parties whereas Assessing Officer failed to bring on record any Concrete, Cogent, corroborative and incriminating materials on record to discard the details submitted to him, but merely relying on the information‟s of other parties made additions based merely on suspicion considered and surmises, assumptions and presumptions and with berated mind which may not be allowed to prevail in the case of the Appellant. Assessing Officer as well as CIT(A)

7. Interest levied u/s 234 B of the Act for short payment of advance tax and interest levied u/s. 234C for nonpayment of assessed tax may be deleted as appellant is pursuing all legal remedies and which was not finally accepted by the Appellant after fine years of completion of Financial year and the face if finality of the appeal is yet to be decided by this Honorable ITAT, Mumbai.” 03. Facts shows that assessee is a firm engaged in the business of trading in ferrous and nonferrous metals. It filed its return of income on 25/9/2011 at a total income of ₹ 164,070/–. This return was not picked up for scrutiny and therefore subsequently when information was received from the sales tax Department and DGIT (investigation), Mumbai that somebusinessmen has indulged in acceptance of bogus purchase bill from the bogus hawala bill providers. As per the information received the name of the assessee also appeared as one of the beneficiaries of such bogus purchase bills during the previous year relevant to assessment year consideration.