APEX SOFTCEL (INDIA) P. LTD,MUMBAI vs. DCIT 2(1), MUMBAI

The present appeal has been preferred by the assessee against the order dated 07.09.2015 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 2009-10.

Matter carried to the Ld. CIT(A) and the Ld. CIT(A) dismissed the appeal of the assessee.

During the course of hearing, the Ld. A.R. submitted that similar issue had come up before the Tribunal and the Tribunal has allowed such claim, therefore, this claim should be allowed. He relied upon the following decisions: 1. Rajeev M Kalathil in

Paresh Gandhi in ITA No.5706/M/2013 3. Heeralal Chunilal Jain in ITA No.4547/M/2014 4. Imperial Imp. & Exp. in ITA No.5427/M/2015

On the other hand, the Ld. D.R. relied upon the order of the Ld. CIT(A).

We have heard the rival contentions of both the parties. Ld. D.R. relied upon the decision of the Tribunal, Ahmedabad Bench in 3 M/s. Apex Softcel (India) Pvt. Ltd. the cases of Shwetambar Steels vs. ITO Ahmedabad and Ganesh Rice Mills vs. CIT (294 ITR 316). The facts in the present case show that assessee could not produce the parties from whom goods are stated to have been purchased. The suppliers were found to be engaged in providing bogus bill without actual dealing of goods. In this regard, the assessee has stated that they had submitted quantitative details of stock with respect of the sales with purchases from the parties during the assessment proceedings. The assessee has submitted the detail of corresponding sales in respect of the purchase from the said parties. As mentioned above the AO has never disputed or examined the aspect of sales receipts. Since the sales made by the assessee was not doubted or disputed by the AO and he has accepted the sales receipts of the assessee as it is, therefore, the AO cannot deny that purchases were not made by the assessee and the material was not used for its sales. What is under dispute is the purchases from the parties from whom bills have been taken and cheques have been issued to them. Purchases are not in dispute but the parties from whom purchase are shown to have been made are disputed and suspicious. The AO had made the addition as some of the suppliers were declared hawala dealers by the VAT Department. This may be a good reason for making further investigation but the AO did not make any further investigation and merely completed the assessment on suspicion. Once the assessee has brought on record the details of payments by account payee cheque, it was incumbent on the AO to have verified the payment details from the bank of the assessee and also from the bank of the suppliers to verify whether there was any 4 M/s. Apex Softcel (India) Pvt. Ltd. immediate cash withdrawal from their account. No such exercise has been done or findings recorded. There was no detailed investigation made by the AO himself. It is also found that the payments have been made by account payee cheque which are duly reflected in the bank statement of the assessee. There is no evidence to show that the assessee has received cash back from the suppliers. Merely because the suppliers did not appear before the AO or some confirmation letters were not furnished, one cannot conclude that the purchases were not made by the assessee. This view is supported by the decision of Nikunj Eximp Enterprises vs. CIT 216 Taxman 171 (Bom). To this extent, we are of the view that if the assessee has fulfilled its onus of making the payment by cheque and has supplied the addresses of the sellers then it cannot be presumed that supplier were bogus simply because the sellers were not found at the given address. There is a considerable time gap between the period of purchase transaction and period of scrutiny proceedings. The AO has not brought any material on record to show that there is suppression of sales. It is basic rule of accountancy as well as of taxation laws that profit from business cannot be ascertained without deducting cost of purchase from sales. Estimation of profit ranging from 12.5% to 15% has been upheld by the Hon'ble Gujarat High Court in the case of CIT vs Simit P Sheth 356 ITR 451 (Guj.). We find that Mumbai Tribunal, in the case of Madhukant B Gandhi in ITA No.1950/M/09, considering the various judgments of various High Courts has held that in view of the fact that it has been amply established that purchase records in books of account from these

In the result, this appeal of the assessee is partly allowed. for A.Y. 2010-11 8. The short facts of the case are that assessee has made purchases of Rs.61,80,503/- from four parties namely, (i) M/s. Snipher Infocom Pvt. Ltd., (ii) M/s. Shradha Trading Company, (iii) Vidhi and Vrushti Trade Pvt. Ltd., (iv) M/s.Bharat Enterprises, (v) M/s. Sun Enterprises and (vi) M/s. Ajay Stone. The assessee was asked to produce the parties but assessee did not produce these parties. The Assessing Officer (hereinafter referred to as the AO) also issued summons u/s 131 but the summons were returned back with postal remark “unknown”. Assessee was asked to produce these parties and assessee was given show cause notice but assessee did not produce these parties. Therefore, AO has treated these purchases as bogus bills from six parties and made the addition of Rs.61,80,503/-.

Matter carried to the Ld. CIT(A) and the Ld. CIT(A) dismissed the appeal of the assessee.

In the result, both the appeals of the assessee are partly allowed. Order pronounced in the open court on 14.02.2018.