VISHAL KANITLAL KANUNGA,KALYAN vs. ITO WD 1(5), KALYAN

Per D.T. GARASIA, Judicial Member:

2 & 91/M/2017 ITA Nos.2794 & 2795/M/2017 Shri Vishal Kantilal Kanunga ITA Nos.90 & 91/M/2017 (Revenue’s appeals) 2. The brief facts of the case are that during the years under consideration the Assessing Officer (hereinafter referred to as the AO) found that assessee had made purchases from following parties, who have been declared as suspicious. The details of the bogus purchases are as under: Sr. Name of the dealer Amount of bill No. A.Y. 10-11 A.Y. 11-12 1. Sakand Industries 6,27,120 25,28,550 2. Mahavir Industries 33,87,700 - 3. Arihant Traders - 70,60,000 4. Samir Trading - 74,65,580 Corporation 5. Suraj Sales Corporation - 22,95,490 Total Rs.40,14,820 Rs.1,93,49,620

3 & 91/M/2017 ITA Nos.2794 & 2795/M/2017 Shri Vishal Kantilal Kanunga 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 immediate cash withdrawal from their account. No such exercise has been done or findings recorded, There was no detailed investigation

4 & 91/M/2017 ITA Nos.2794 & 2795/M/2017 Shri Vishal Kantilal Kanunga 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.). Respectfully following the decision of Hon’ble Gujarat High Court in the case of CIT vs. Simit P. Sheth 38 taxman 385 (Guj), we dismiss both the appeals of the Revenue.

Order pronounced in the open court on 08.09.2017.