MITHU RAM,DIRBA vs. INCOME TAX OFFICER, SUNAM

This is an appeal filed by the Assessee against the order of the Ld. CIT(A)/NFAC, Delhi dt. 17/08/2023 pertaining to Assessment Year 2015-16.

In the present appeal, the assessee has raised the following grounds of appeal:

Being aggrieved, the assessee carried the matter in appeal before the Ld. CIT(A) and it was submitted that AO erred in law by making an addition of Rs.25.60,798/- on whimsical observation, whereas appellant had filed the confirmed copy of account. It was stated that appellant had made purchase of goods on credit from Gaurav Steel & Allied Industries Gobindgarh during the year and there was a credit balance of Rs.25,60,798/- at the close of year. During assessment proceedings, AO asked to furnish the copy of next year and in next year, payments were made in cash at Rs.20,000/- in a single day and AO opined that when the distance between two stations is round 90 to 100 km, it is hard to believe such transaction and it was held to be bogus purchases and addition was made. It was submitted that AO failed to appreciate that in copy of a/c, there were voucher number and there was no continuity of voucher number. Secondly, appellant had filed one certificate downloaded from website of Punjab Excise and Taxation Department that the firm of Gaurav Steel & Allied Industries, Gobindgarh has cancelled its TIN number in December 2015 and closed down its business. The AO states that notice server was deputed to serve the summons u/s 131 of the IT Act to this party but the summons were returned as this party was not found existent at the address given by the assessee. It was submitted that the AO failed to appreciate the fact that in Dec 2015, party has closed his business and cancelled his tin number and the AO send the notice server in 2017. It was submitted that now a days, it's common thing that parties run away from the city because of their hefty loans and payments have to be made to the parties from whom the goods were purchased, it might be possible that the same thing had happened with the firm of M/s Gaurav Steel and Allied Industries. It was submitted that confirmed copy of a/c, along with sale bill and billty are attached to justify that the purchases are genuine and in next year when the payment was made, it was made through proper vouchers and the details of the same is available in the copy of account filed. It was submitted that the books of a/c are duly audited and AO has accepted the opening stock, sales and closing stock and even books of accounts, even in next year, appellant had made cash payment and in that year, trading a/c and books were also accepted and it was submitted that AO had made addition in a surmise manner u/s 68 of the IT Act and the addition so made be deleted.

The submissions so filed by the assessee were considered but not found acceptable to the Ld. CIT(A). As per Ld. CIT(A), the appellant has shown credit purchases of Rs. 25,60,798 from M/s Gaurav Steel and Allied Industries. The Assessing officer conducted proper enquiries u/s 133(6) and found that the creditor is non-existent in the given address. Moreover, the entire Rs.25,60,798/- was paid by the appellant as daily cash payments of Rs.20,000/- and it is beyond human probability and immensely suspicious that a huge sum is repaid in the said manner and the entire transaction points to a bogus entry. As per ld CIT(A), there is a clear instance where the decisions in the cases of CIT v. Durga Prasad More (1971) 82 ITR 540 and Sumati Dayal v. CIT (1995) 214 ITR 801 can be applied where the Hon’ble Supreme Court has laid down Human Probability test as one of the important test in order to check genuineness of the transactions entered into the books of account of the assessee. The Apex court stated that, taxing authorities were not required to put on blinkers while looking at the documents produced before them. They were entitled to look into the surrounding circumstances to find out the reality of the recitals made in those documents. Hence the conclusion of the Assessing officer that the assessee has taken accommodation entries of purchases from M/s Gaurav Steel & Allied Industries to adjust its taxable income is upheld and addition of Rs. 25,60,798/- was sustained under section 68 of the I.T. Act, 1961.

Against the said findings, the assessee is in appeal before us. During the course of hearing, the Ld. AR submitted that the assessee has made purchases of M.S. Pipes to the tune of Rs. 25,60,798/- from M/s Gaurav Steel and Allied Industries during the year under consideration. During the course of the assessment proceedings, the assessee duly filed the copy of account of M/s Gaurav Steel and Allied Industries before the Ld. AO for the A.Y. 2015-16 as well as for 2016-17 as called for by the AO. It was submitted that the AO merely on the basis of suspicion considered the said purchases as accommodation entries, even when the assessee duly explained that the said party has closed its business operations and has also cancelled its TIN number due to the financial crunch and huge liabilities. So, in such a situation the presumption of the AO was that a concern situated at Gobindgarh collected Rs. 20,000/- in cash from a concern situated at Dirba and vice-virsa as the distance between two cities is around 90-100 kms, is purely baseless and based on surmises and conjectures.

It was submitted that due to the fact that the assessee could not furnish the confirmed copy of account of the third party during the course of the assessment proceedings but the same was duly submitted during the proceedings before the CIT(A) as per copy at Page No. 38 of the Paper Book. Further, the ld CIT(A) also confirmed the addition made by the AO on the similar presumptions and assumptions. Even when the assessee duly furnished the confirmed copy of account as well as the purchase bills and the freight invoices and other evidence of the goods having been received before the ld CIT(A) as an additional evidence along with the separate letter for the admission of such evidences. Copy of the confirmed copy of account as well as the bills etc. are placed at Page No. 27 to 38 of the paper book. The assessee also submitted vide its written submissions filed before the CIT(A) that the said party closed its business operations and left the city because of their hefty outstanding loans and payments. Thus, this was the reason that M/s Gaurav Steel and Allied Industries insisted the assessee for the cash payment and was ready to collect the cash from the assessee premises on daily basis.

It was submitted that the AO or the ld CIT(A) cannot guide the assessee as to how he should conduct his business operations and cannot challenge his business acumen. So, no addition can be made/sustained on the basis of presumption and assumptions when nothing adverse has been found either by the AO or the ld CIT(A) in the documents and explanation furnished by the assessee. It is also evident from para 4.2 at page no. 9 of the appellate order that the addition has been sustained by the CIT(A) on the basis of probability and suspicion and was not even about the observation being made as it has been mentioned ‘entire transaction points to a bogus entry’. Therefore, the AO purely made an assumption and has made the addition on the basis of the surmises and conjectures as nothing has been brought on record to conclude against the contention of the assessee while deciding the matter against the facts submitted by the Assessee when there is no documentary or financial trail to prove otherwise. Also the CIT(A) has wrongly sustained the addition so made which is bad in law and deserves to be deleted.

It was submitted that the Assessing Officer and ld CIT(A) have merely relied upon the notice u/s 133(6) issued by the AO to M/s Gaurav Steel and Allied Industries, which was not served as the party has left the premises. The assessee duly filed the evidence of closure of the business operations from such premises in December 2015, then how the Tax Authorities assume to serve the notice to such party on the said premises in 2017. Copy of the certificate issued by Punjab Excise and Taxation Department confirming the cancellation of the registration of M/s Gaurav Steel & Allied Industries on 18 December 2015 is placed at Page No. 39 of the Paper Book. The action of the AO of merely issuing notice u/s 133(6) of the Act and making no other efforts for forcing compliance of such notice by the other party is not justified. Moreover, the Assessee had duly furnished the purchase bills as well as the freight invoices justifying the purchases so made. So, without any cogent evidence against the assessee, the presumption and assumptions of the CIT(A) with regard to the genuineness of the transaction are vague and baseless.

It was submitted that the AO and CIT(A) has not raised any doubt on the sales made by the Assessee and infact all the sales have been accepted by him. This dual approach of the Ld. AO caste a serious question that how sales can be made without purchasing the material and therefore, rejection of purchases by treating the same as bogus in such cases would give absurd results and accordingly, such addition deserves to be deleted. Thus, it was submitted that the addition in the case of the assessee on account of bogus purchases has been made by disregarding the following aspects of the case of the assessee:

In support, reliance was placed on the following judgments of the Hon’ble Apex Court in which, it has been held that if the purchases have been made from the parties which are doubted by the Ld. AO, but if the assessee maintaining complete stock record, and the sales have not been doubted and even if the parties are not traceable, then no case of bogus purchases can be made against the assessee:

It was submitted that the case of the case of the assessee is duly covered by the judgements cited above wherein it has been held that no addition can be made when the assessee has established the genuineness of the purchase transaction and addition so made be directed to be deleted.

The ld DR vehemently argued the matter and relied on the findings of the lower authorities.

We have heard the rival contentions and purused the material available on record. As part of his contentions, the ld AR has submitted that the assessee duly furnished the confirmed copy of account of M/s Gaurav Steel and Applied Industries, the purchase bills, the freight invoices and other evidence of the goods having been received before the ld CIT(A) as an additional evidence along with the separate letter for the admission of such evidences. The same is also evident from paragraph 3 of the impugned order where it has been stated that “the appellant had submitted additional evidence before the previous CIT(A) but till date this office has not received any response from the Assessing officer”. However, irrespective of fact whether the AO has responded by way of his remand report on the additional evidences so submitted by the assessee, there is no finding recorded by the ld CIT(A) in accepting or rejecting the additional evidences so submitted by the assessee. Once an application for admission of additional evidence is submitted by the assessee, the ld CIT(A) is required to dispose off the same and cannot keep a silence as has happened in the instant case especially where the additional evidence so submitted goes to the root of the matter and require proper examination/verification before a view is taken in the matter. We therefore have a situation where the assessee relies on the additional evidence so submitted before the ld CIT(A) in support of the purchase transaction and the ld CIT(A) not considering the same has gone ahead and upheld the findings of the AO. We find that the additional evidence so submitted goes to the root of the matter and in the interest of substantial justice, the same is hereby admitted and the matter is remitted to the file of ld CIT(A) to examine the same and record his findings as per law after providing reasonable opportunity to the assessee. All the contentions thus raised before us are left open and the assessee is at liberty to raise the same as so advised before the ld CIT(A) who shall examine the same as per law. In the result, the ground of appeal is allowed.

Being aggrieved, the assessee carried the matter in appeal before the Ld. CIT(A) and the relevant findings of the Ld. CIT(A) are contained at para 5 and 5.1 of the impugned order which read as under:

Against the said findings and the direction of the Ld. CIT(A), the assessee is in appeal before us.

During the course of hearing, Ld. AR submitted that the assessee has moved a prayer for admission of additional evidence in the form of bank statement of Shri Amrik Singh Kharaud and Shri Tejinder Singh. It was submitted that since the assessee faced business difficulties and was on the verge of bankruptcy, it could not retrieve any information / documents and had closed its business operation in F.Y. 2018-19. However the assessee with a great difficulty has arranged the bank statement of these two parties to establish the genuineness of the transaction and it was accordingly submitted that the said bank statements may be taken on record as additional evidence and the matter may be restored for necessary verification. It was submitted that these documents goes to the root of the matter and reliance was placed on the decision of Hon’ble Punjab & Haryana High Court in case of M/s Mukta Metal Works as reported in 336 ITR 555 wherein it was held that if additional evidence is of some relevant and is required for imparting justice, the same be admitted.

Per contra, the ld DR is heard who has relied on the order of the lower authorities and it was submitted that the assessee has already been allowed sufficient opportunity during the assessment and appellate proceedings and at the same time, where the Bench deems fit, the matter may be set-aside to verify the additional evidence.

We have heard the rival contentions and purused the material available on record. We find that the case of the assessee was selected for limited scrutiny and one of the reasons for selection of the case was to verify substantial increase in capital account of the assessee. During the course of assessment proceedings, the AO verified the capital account of the assessee and found that there were credits to the tune of Rs 7,70,000/- which has been received from Shri Amrik Singh Kharuad and similarly, there were credits to the tune of Rs 10,48,000/- from Shri Tejinder Singh and the explanation of the assessee was called and in absence of necessary explanation, the amount so found credited in the capital account was brought to tax u/s 68 of the Act. Even during the appellate proceedings, the assessee couldn’t furnish any explanation and the addition was confirmed. However, before us, the assessee has moved a prayer for submitting additional evidence in form of bank statements of Shri Amrik Singh Kharuad and from Shri Tejinder Singh and on prima facie review of the said statement, we find that there are entries wherein the amount has been transferred to the assessee. The assessee has also explained the circumstances in terms of his closure of business in the subsequent financial year 2018-19 and the difficulties which prevented him from arranging the said bank statements. Therefore, keeping in view the fact that these bank statements have been obtained and placed on record by the assessee and the same goes to the root of the matter and establishes atleast the banking trail of the transactions so undertaken and keeping in view the principle of substantial justice, the same are hereby admitted and the matter remitted to the file of ld CIT(A). The ld CIT(A) is hereby directed to consider the same and after calling for the explanation from the assessee which the assessee is at liberty to submit, record his findings afresh as per law. In the result, ground no. 4 & 5 are allowed for statistical purposes.

Ground no. 2 was not pressed during the course of hearing and the same is dismissed as not pressed. Ground no. 1 is general in nature and doesn’t require any separate adjudication.

In the result, the appeal of the assessee is partly allowed for statistical purposes.