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TMI Blog2013 (12) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2006. The return was processed u/s 143(1) of Income Tax Act accepting the return of income. The assessment was reopened u/s 147 after recording the reasons for reopening. The main reason for reopening as well as the addition made by the Assessing Officer is that certain facts were discovered during the survey action u/s 133A of the Income Tax Act conducted on 13.2.2009 and concluded on 14.2.2009 in case of following concerns: i) Shri Rakeshkumar M. Gupta, Prop. of M/s Manoj Mills. ii) Smt. Hema R. Gupta, Prop. of M/s Shree Ram Sales & Synthetics. iii) Shri Mohit R. Gupta, Prop. of M/s Astha Silk Industries. At the time of survey action the survey team found that there is no trading activity (sales/purchases) conducted by these group concerns and also there was no stock found with them. Statement of Shri Rakeshkumar Gupta was recorded during the survey u/s 133A on 13.2.2009 and further u/s 131 on 23.2.2009. The Survey team found that the group concerns of Rakeshkumar Gupta are engaged in the activity of issuing accommodation bills to various parties in Mumbai and outside Mumbai. In the statement recorded during the course of Survey as well as post survey inquiry Shri Rakeshkum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e AO has not brought on record any material to show that the payment made by the assessee has been received back by the assessee from the supplier without any actual purchase. The Ld. AR has contended that when the statement made during the survey action has been retracted by the supplier then the same cannot be used against the assessee for making this addition. He has also referred the order of CIT(A) for the assessment year 2007-08 wherein only G.P. addition was made against which the assessee as well as revenue filed the cross appeals and the Tribunal has decided the issue in favour of the assessee. The Ld. AR has pointed out that when the CIT(A) has treated the purchases as genuine for the assessment year 2007-08 and made only G.P. addition then the similar purchases cannot be treated as bogus for the years under consideration. He has referred the affidavit filed by Shri Rakeshkumar Gupta whereby the statement made during the survey has been retracted and it has been affirmed that the transactions of sale to the assessee are genuine and against the payment through cheques. The Ld. AR has referred the purchase bills and other detials from page no. 62 to 115 of the paper book an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt was refund to the parties. Thus, the Ld. DR has submitted that there is no actual purchase or sale of the material but the assessee has been obtaining accommodation bills to inflate the purchases and avoid the tax liability. He has relied upon the following decisions: Ramjas Nawal Vs CIT 131 Taxman 525 (Raj.) ITO Vs Devji Premji Pujara & Sons 34 Taxmn.com 96(Mum) D. D. Kochhar & Sons Vs ITO 25 ITD 317 (Del) And submitted that the retraction is not valid in this case and the AO has proved that the purchases in question are bogus. In rebuttal the Ld. AR has submitted that the assessee has proved the item wise purchases and sale by producing the relevant record therefore, the assessee has discharged its onus. He has relied upon the decision of this Tribunal in case of Free India Assurance Services Ltd. Vs DCIT 132 ITD 60. 6. We have considered the rival submissions as well as relevant material on record. There is no dispute that a survey action was taken in the cases of Shri Rakeshkumar Gupta and the other concerns of his family members. Statement of Shri Rakeshkumar Gupta was recorded during the survey action u/s 133A on 13/14.2.2009. The Assessing Officer has reproduced the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tics (3) M/s. Sainath Textiles (4) M/s. Dev Vani/Industries and (5) M/s. Astha Silk Industries - in the name of various parties for whom sale bills required. Question No. 17. What ala the purchase bills printed and used to show as purchases? Ans: The purchase bills are used mainly in the names shown as purchase parties, which are as under:- (1) M/s. N. M. Corporation (2) M/s. Payal Industries (3) M/s. Deep Enterprises (4) M/s. Rich Fabrics (5) M/s. Kajol Impex (6) M/s. Ash Enterprises (7) M/s. Shiv Textiles (8) M/s. Pancham Tex (9) M/s. Om Creations, (10) M/s. Royal Fabrics (ii) M/s. M. M. Creations (12) M/s. Shubham Tex and others. Question No. 18 It is found from the office premises that there are blank, bill books of around 16 parties consisting of six books each? Please explain me the use of these blank bill books? Ans: The blank bill books are used to record the purchases made from these parties as narrated in the Q.No. 17 above and used to record as a sales to various parties as narrated in the Q.No. 16 above. Question No.27. Give the details of the non existing Sundry creditors and also names & address of Sundry Creditors with their PAN Nos and amounts outstanding again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commission. In other words, my activity is providing the accommodation bills to the various parties. Actually, there is no purchase and sale of the goods whatsoever. Hence, I do not keep more stock in my custody. However, I keep a nominal quantity of stock in the shop premises, in order to show that the business is of trading in textiles. I am running 5 proprietory concerns in the name of myself, wife & my children. Out of these, 3 are old and main concerns, which deal in issuing accommodation bills. These are (i) M/s. Manoj Mills (ii) M/s. Astha Silk Inds. & (iii) M/s. Shree Ram Sales & Synthetics. Though some of these concerns are in the name of my wife and children, I am running the business. My wife is a housewife and children are in the employment. (4) That means, you and your family concerns did not have any 'trading' activities from the year 2000 onwards? Explain? Ans: We did not have any 'trading' activities from the year 2000 onwards. We were engaged exclusively in the activities of issuing f accommodation bills for the past 9 years. In all the above family concerns and earning commission on the same. (6) What are the total amount of accommodation bills you have given ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Shri Rakeshkumar Gupta has confirmed and affirmed his earlier statement. In the answer to question no. 4 it is categorically stated that there was no trading activity from the year 2000 onwards. Further it was stated that they were engaged exclusively in the activities of issuing accommodation bills for past 9 years and earning commission income on the same. Though the assessee has placed reliance on the affidavits filed by Shri Rakeshkumar Gupta and other family members wherein it has been stated that the transactions with the assessee are genuine however, it is pertinent to note that in these affidavit there is nothing to show that the statements recorded during the survey action as well as statement recorded during the post survey inquiry us/ 131 of the Income Tax Act were given under any coercion duress or pressure. Therefore, these affidavits cannot be accepted as retraction of the earlier statements and particularly the statement given u/s 131 wherein a categorical fact was stated that since the year 2000 there is no actual trading by all these concerns of Shri Rakeshkumar Gupta and his family members and they were engaged exclusively in the activity of issuing accommodat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eiving witness summons from all four corners of the city on the ground that I have given accommodation bill, though I have denied the content of the statements recorded by A.O. u/s. 133A & 131 vide my letter dated 27.4.2009 and my affidavit dated 20.2.2009 submitted to ward 14(3)(2). It is physically impossible for me to attend before various income tax authorities, as I am not feeling well, it will not possible for me to attend before your goodself in response to your above mentioned summons. As regards M/s. Jitendra Harshad Kumar Textiles Pvt. Ltd. is concerned. I have already given my affidavit wherein I have specifically stated that I have sold the goods to, M/s. Jitendra Harshad Kumar Textiles P. Ltd. and the consideration is received to me by cross order cheque. Copy of the said ledger account is already submitted the department." 8.1 From the above letter it is clear that the same was written in response to notice issued by the AO. Not only Shri Rakesh Kumar Gupta has stated that he has retracted from the statement recorded during the survey but also filed an affidavit dated 20/2/2009 and letter dated 27/4/2009 to deny the statement made during the survey under section 133 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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