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Income Tax Appellate Tribunal, VIRTUAL COURT
Before: SHRI C.N. PRASAD, HONBLE & SHRI M. BALAGANESH, HONBLE
O R D E R PER C.N. PRASAD (JM) 1. These appeals are filed by the revenue against different orders of the Learned Commissioner of Income Tax (Appeals)–38, Mumbai [hereinafter in short “Ld.CIT(A)”] dated 15.10.2018 and 30.01.2019 for the A.Y. 2011-12 and 2010-11 respectively, in deleting the addition/disallowance made by the Assessing Officer.
2 & 4899/MUM/2019 (A.Ys. 2011-12 & 2010-11) M/s. Pratishna Engineers 2. Briefly stated the facts are that, assessee engaged in business of manufacturing of Injection Moulding machine, filed return of income on 02.10.2010 and 30.09.2011 declaring income of ₹.14,26,307/- and ₹.41,44,467/- for the A.Y. 2010-11 and A.Y. 2011-12 respectively, and the returns was processed u/s. 143(1) of the Act. Subsequently, Assessing Officer received information from the DGIT (Inv.,), Mumbai about the accommodation entries provided by various dealers and assessee was also one of the beneficiary from those dealers. The assessments were reopened U/s. 147 of the Act based on the information received from DGIT(Inv.), Mumbai, that the assessee has availed accommodation entries from various dealers who are said to be providing accommodation entries without there being transportation of any goods. In the reassessment proceedings, the assessee was required to prove the genuineness of the purchases made from various parties as mentioned the Assessment Order. In response assessee submitted that the purchases made from the parties are genuine. Assessee further submitted that the payments are made through account payee cheques as such contended that all the purchases are genuine.
3 & 4899/MUM/2019 (A.Ys. 2011-12 & 2010-11) M/s. Pratishna Engineers 3. Not convinced with the submissions of the assessee the Assessing Officer treated the purchases as non-genuine and he was of the opinion that assessee had obtained only accommodation entries without there being any transportation of materials and the assessee might have made purchases in the gray market. Assessing Officer observed that the notices issued u/s. 133(6) of the Act to the parties are returned unserved with a remark “unserved/unclaimed” and the assessee has not produced the parties before the Assessing Officer. Circle Inspector was deputed to serve the notice u/s. 133(6) of the Act and the inspector in his inquiries found that the parties do not exist on the address furnished by the assessee. It is the finding of the Assessing Officer that the assessee failed to produce the parties in support of its claim that purchases are genuinely made from the parties. Therefore, Assessing Officer treated 25% of the alleged bogus purchases of ₹.66,51,301/- and ₹.1,45,86,828/- for the A.Y. 2010-11 and A.Y. 2011-12 respectively as non-genuine. On appeal the Ld.CIT(A) considering the evidences and various submissions of the assessee deleted the addition/disallowance made by the Assessing Officer.
4 & 4899/MUM/2019 (A.Ys. 2011-12 & 2010-11) M/s. Pratishna Engineers 4. Ld. Counsel for the assessee reiterated the submissions made before the Ld.CIT(A) and supported the order of the Ld.CIT(A).
Ld. DR vehemently supported the orders of the Assessing Officer.
We have heard the rival submissions, perused the orders of the authorities below. On a perusal of the order of the Ld.CIT(A), we find that the Ld.CIT(A) considered this aspect of the matter elaborately with reference to the submissions of the assessee and the averments in the Assessment Order and following various judicial pronouncements deleted the addition made by the Assessing Officer. While holding so, the Ld.CIT(A) for the A.Y. 2011-12 observed as under: - “7.3.2 In the given facts of the case the AO has not rejected the books of accounts of the appellant. The AO has not found any such irregularities so as to reject the books of accounts. Further the sales shown have been accepted as it is by the Assessing Officer and has also not been doubted by the Assessing Officer. Therefore, if sales are not doubted or proved non genuine by the AO, then the logical corollary is that the appellant has definitely made the purchases or else wherefrom he could have effected the sales. In view of the above facts, the purchase claimed to have been made by the appellant can neither be disbelieved nor can be held to be non- genuine. Further it is also facts of the case that the appellant is engaged in the business of undertaking turnkey projects for BARC and Indian Navy. In this regard, as proof, the Ld. AR submitted photocopy of order dated 15.02.2007 received by the appellant from Government of India, Department of Atomic Energy and Tax Invoice No.43 dated 29.09.2009 for Rs.2,12,62,500/- accompanied by delivery challan No.44 to evidence that the goods were supplied by the appellant to the aforesaid government organization. Further, it is submitted that on successful completion of the said order, the 5 & 4899/MUM/2019 (A.Ys. 2011-12 & 2010-11) M/s. Pratishna Engineers appellant received another order dated 05.01.2009 from the Defence Machinery Design Establishment, against which the goods were supplied vide Tax Invoice No. 033 dated 06.09.2010 for Rs.3,37,50,000/- which is enclosed at page 219 with delivery challan at page 220 of the Paper Book. Referring to these documents, the Ld. AR submitted that these are actual sales made, for which the disputed goods under question were purchased. Similar issue was in question in A.Y.2009-10, for executing order from Department of Atomic Energy and the addition made by the AO was deleted by my predecessor based on the materials produced and evidenced. Thus the submissions of the appellant cannot be brushed aside in a casual manner when the fact remains that the material has been purchased and supplied for the projects of Government of India. 7.3.3 There are several judicial pronouncements wherein it has been held that if the purchases were made through banking channels & later or even if the assessee was unable to produce the suppliers, still purchases were held to be genuine. In this regard, reference is made to the judgment of Hon'ble ITAT, Mumbai Bench in the case Parmit Textiles vs. ITO ITA Nos.4012 to 4015 and 4020 to 4021/Mum/2012 where the jurisdictional ITAT, Mumbai observed that there was no material on record to say that the purchases made by assessee were bogus. The Hon'ble ITAT held that in absence of any adverse material brought on record, the addition made in the case of assessee will be based on presumption only and it cannot be sustained in the eyes of law. 7.3.4 It is observed that the Sales Tax Department had disallowed the claim of input tax credit in hands of the purchaser, and the Hon'ble High court of Bombay in the case of M/s. Mahalaxmi Cotton Ginning Pressing Industries (51 VST 1) has directed the authorities to pursue recoveries against the defaulting selling dealers. The appellant has further contended that the above parties had defaulted in not paying VAT to the government treasury which does not mean that the purchases from these parties were bogus, since the parties could have given false statements to save themselves from the action of the Sales Tax Department. I find that the AO cannot make any addition just on the basis of presumptions. Suspicion, however strong cannot take place of proof. Further in the present facts and circumstances of the case, it is observed that the alleged hawala parties have made submission before the AO through registered post. 7.3.5 It has been held by Bombay High Court in the case of Orient Trading Co. Ltd vs. CIT(49 ITR 723), Patna High Court in the case of Sarogi Credit Corporation Vs CIT (103 ITR 344), Madras High Court in the case of CIT vs. Qani Silk Palace (171 6 & 4899/MUM/2019 (A.Ys. 2011-12 & 2010-11) M/s. Pratishna Engineers ITR 373), Allahbad High Court in the case of Daya Chand Jain Vaidya (98 ITR 280), it will not thereafter be for the assessee to explain further. The burden will shift on to the AO to show why the assessee's case cannot be accepted, but the same has not been discharged. 7.3.6 The issue of bogus purchases was considered by the Hon'ble Gujrat High Court in the case of M/s. Nangalia Fabrics Pvt. Ltd. (Tax Appeal No.689/2010 dated 22.4.2013) and it was held that addition on account of bogus purchases was not sustainable where purchases are supported by bills, entries in the books of accounts, payment by cheques, entries in stock register and quantitative details. 7.3.7 In case of Shri Totaram Sharma vs. ITO Ward-6(4), Ahmedabad (Cross-Appeal) ITA Nos. 2239 & 229 1/AHD/ 2004, it was held by Tribunal that: (a) The purchases made by the assessee from the relevant four parties, quantity wise as well as value wise have been recorded in the books of accounts.
(b) The payment for such purchases has been found to have been made by crossed cheques & duly recorded in the books of accounts. (c) The sales corresponding to such purchases have been found recorded in the books of accounts and it is so because Revenue has not doubted the genuineness of the sales, rather accepted the same. (d) There is no allegation of suppression of value of the closing stock or of the sales quantity wise or value wise & there is no allegation of inflation of purchases also. In view of these facts, the appeal of the assessee was allowed. The above order of Tribunal has been confirmed by Gujarat High Court vide Tax appeal no. 1344 of 2008 with Tax appeal no, 1355 of 2008. 7.3.8 In the case of Rajesh P. Soni vs. ACIT (2006) 100 TTJ 892 (Ahd. ITAT), the decision is rendered as under:- Purchases were recorded in the regular books of account maintained. The purchases were supported by proper bills/vouchers. The appellant filed the necessary details regarding name, address, sales tax number. The payments were made through banking channels.
7 & 4899/MUM/2019 (A.Ys. 2011-12 & 2010-11) M/s. Pratishna Engineers Thus, the sales against purchases were not doubted. It is not the case ofAO that amounts paid for purchases had come back to the appellant AO had made addition merely on the ground that the suppliers were not located and they were not produced for examination. This is not a relevant factor and the addition made by the AO be deleted. 7.3.9 In the case of DCIT vs. Shri Rajeev G. Kalathil (Mum. ITAT) (ITA no. 6727/M/2012) (Copy enclosed) dated 20.08.2014 it was held that the AO had made the addition as one of the suppliers was declared a hawala dealer by the VAT Department. The Tribunal observed that this was a good starting point for making further investigation and to take it to logical end. But, the AO left the job at initial point itself. It was further held that suspicion of highest degree cannot take place of evidence and the AO could have called for the details of the bank accounts of the suppliers to find out whether there was any immediate cash withdrawal from their account. There is nothing in the order of the AO about cash trail and so the disallowance could not be made. 7.3.10 In the case of ACIT vs. KishanLal Jewels (P.) Ltd. (2012) 147 TTJ 308(Del.)(Trib.) the assessee while furnishing necessary information regarding the transactions and the aforesaid parties like purchase bills issued against goods purchased, Sales- tax registration numbers of the parties, PANs, their confirmations and Bank statements showing the debit of the amount paid through Account payee Cheques to them in the account of assessee and credited in the Bank Account of sellers, had discharged its primary onus, thereafter the onus shifted on the department to rebut the same. Addition under section 69C was held to be not justified. 7.3.11 Apart from the above, I have also gone through the other judicial pronouncements referred by the AR and analyzed the underlying principles in allowing the claim of the purchases by the assessee. It is well settled that the assessment of any particular year cannot be based on mere suspicion, conjectures or surmises but on a legitimate basis from which a reasonable inference of any expenditure being of the disallowable nature could be drawn and that the initial burden of finding such material is on the AO as held by Hon'ble High Court of Orissa in the case of Bansidhar Onkarmall vs. CIT (1953) 23 ITR 353 (Orissa). The AO has, in the case of the appellant, made the disallowance without any substantial and irrefutable material. 7.3.12 To summarize, it is observed that the purchases are supported by proper invoices duly reflected in the books of accounts, 8 & 4899/MUM/2019 (A.Ys. 2011-12 & 2010-11) M/s. Pratishna Engineers the payments have been madeby account payee cheque which are duly reflected in the bank statement of the appellant. There is no evidence to show that the appellant has received cash back from the suppliers. Further, as the AO has not disputed the sales of the concluded that there is no basis to disbelieve the purchases made by the appellant from the alleged parties which could, have caused any leakage to the revenue necessitating estimated disallowance. In view of the above facts and judicial pronouncements, I find that in the given situation, the claim of the appellant, cannot be denied. The AO is directed to delete the disallowance of Rs.36,46,707/-made to the total income of the assessee Accordingly, these ground of appeal are Allowed.”
7. On a careful perusal of the order of the Ld.CIT(A) and the reasons given therein, we do not find any infirmity in the order passed by the Ld.CIT(A) in deleting the addition made by the Assessing Officer in both these assessment years under consideration. Grounds raised by the revenue are dismissed.
In the result, appeals of the Revenue are dismissed.
Order pronounced on 03.08.2021 as per Rule 34(4) of ITAT Rules by placing the pronouncement list in the notice board.