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TMI Blog2015 (5) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... ad supplied steel and other material to the assessee as well as to other group companies belonging to M/s Kolte Patil Developers Ltd. group of cases. On the strength of such enquiries carried out on six suppliers, namely, (i) M/s Unique Ferro Metals Pvt. Ltd.; (ii) M/s Fresho Metals Pvt. Ltd.; (iii) M/s Praky Metals Pvt. Ltd.; (iv) M/s Meghana Enterprises; (v) M/s Narendrakumar & Co.; and, (vi) M/s R.D. Jain & Co., it was held by the Assessing Officer that the purchases made from them were bogus. Apart from enquiries with the aforesaid six concerns, Assessing Officer also held that purchases made from other five parties, namely, (i) Vora Mercantile Pvt. Ltd.; (ii) M/s Mayoora Metal Trade Corporation; (iii) Yash Trading & Co.; (iv) M/s Shri Surya Steel; and, (v) M/s Satyam Steel were also bogus. In the case of M/s Kolte Patil Developers Ltd. vide ITA Nos.1411 to 1415/PN/2013 dated 20.02.2015, the Tribunal has dealt with an identical controversy, inter-alia, purchases made from the aforesaid eleven parties which held to be bogus by the Assessing Officer. It was a common point between the parties that the issues raised in the captioned appeals are covered by the decision of the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2015 (supra) read as under :- "23. We have carefully considered the rival submissions. In sum and substance, the dispute is with regard to the purchases claimed to have been effected by the assessee from the aforesaid 11 parties. The case setup by the Assessing Officer is that the purchase of steel, etc. made from the said 11 parties was in-genuine and therefore an amount of Rs. 7,75,34,092/- representing purchases effected from such parties has been disallowed while computing the total income. The reasons for the Assessing Officer to hold the purchases as bogus have been detailed by us in the earlier part of this order and are not being repeated for the sake of brevity. Be that at it may, in our view, the purchases effected from six parties stand on a different footing than the purchases effected from the balance five parties. The point of distinction is the manner and the material relied upon by the Assessing Officer in order to treat such purchases as bogus. In so far as the purchase from the six parties is concerned, the same has been held to be bogus based on the enquiries conducted by the Department in the post-search proceedings. Statements of the six parties were recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailed for the reasons we have already stated above. In our view, the right of cross-examination is not automatic, but it would be incumbent only in a situation where the assessee is able to primafacie demonstrate that the onus cast on him to establish his version of affairs is based on primary evidence. In this case, the assessee had failed to lead any primary evidence, viz. GRNs, octroi receipts, delivery challans, etc. which would show that the supplies were indeed made. 25. Now, the assessee has also referred to an affidavit of Shri Narendrakumar Timbodia, Prop. of Narendrakuma & Co. and partner of R.D. Jain & Co., wherein he confirmed that the purchases made by the assessee from him were genuine. This affidavit was obtained by the assessee only after the completion of assessment proceedings and was submitted to the CIT(A). The CIT(A) has admitted such additional evidence and on that there is no dispute. However, he has not accepted the averments made therein. We have also perused the copy of such affidavit, a copy of which has been placed in Paper Book. In this connection, we have also perused the statement of Shri Narendrakumar Timbodia recorded u/s 131 of the Act on 15.09.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be withdrawn is that assessee had indeed effected the purchases. It was pointed out that on the failure of the assessee to substantiate the purchases, at best, the addition can be made with respect to the gross profit element corresponding to the amount of purchases but not the entire amount of purchase bills. The reliance has also been placed on certain decisions in this regard, which we have noted in earlier paras. 27. We have carefully considered the aforesaid alternate plea of the assessee but find ourselves unable to accept the same, having regard to the facts and circumstances of the present case. The proposition being relied upon by the assessee on the strength of the decisions of the Hon'ble Gujarat High Court noted earlier is not disputed. But the moot question is as to whether the position canvassed by the assessee that the quantity of steel corresponding to the impugned purchases has been consumed stands established or not ? The confirmation of the structural engineer, a copy of which has been placed in Paper Book at page 79 does not elaborate as to the time period in which the consumption of steel has taken place. Moreover, at the relevant point of time, multiple proj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) Vora Mercantile Pvt. Ltd.; (ii) M/s Mayoora Metal Trade Corporation; (iii) Yash Trading & Co.; (iv) M/s Shri Surya Steel; and, (v) M/s Satyam Steel were not put through any enquiry or verification by the Assessing Officer. It was only on the basis of the documents put-forth by the assessee that purchases from the said parties have been held to be bogus. Notably, assessee had furnished the invoices raised by the said parties and had also explained that all the payments were made by the cheques. Assessee had also furnished their sales-tax numbers. With respect to the transportation, assessee had explained that the responsibility of transportation was of the supplier and therefore assessee could not produce the transport receipts. The explanations put-forth by the assessee were not subject to any enquiry or verification by the Assessing Officer but have been merely disbelieved. The Assessing Officer, in our view, was influenced by the outcome of enquiries made with respect to the other six parties. However, in the absence of any material on record to negate the position canvassed by the assessee with respect to the said five parties, the explanation of the assessee could not be di ..... 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