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2015 (10) TMI 2250 - ITAT DELHI

2015 (10) TMI 2250 - ITAT DELHI - TMI - Addition made of the closing balance of the sundry creditors - Held that:- The assessee during the course of assessment proceedings furnished the confirmation of outstanding balance obtained from the said parties but those parties could not be produced for the reason that a prolonged litigation was going on and the parties were absconding. However, the assessee furnished the details of their bank account wherein the payment made by the assessee in the subs .....

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not produced before him.

The assessee vide letter dated 30.07.2012 written to the AO during the course of remand proceedings informed that the confirmation of the said nine parties are filed before the Hon'ble CIT(A)and bank statement of the assessee for the year under consideration, perusal of which clearly reveals that all the payments were made to the parties through regular banking channel .

In the present case, when the purchases from the parties were accepted and the .....

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opinion, the AO at the same time cannot blow hot and cold from the same wind pipe. In the instant case, the AO accepted the trading results and the explanation for fall in the G.P rate furnished by the assessee, so there was no reason for doubting the outstanding balance in the name of sundry creditors when the purchases made from them were duly accepted as genuine. In our opinion, the ld. CIT(A) was not justified in confirming the addition made by the AO.

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addition made by the AO and sustained by the ld. CIT(A) was not justified - Decided in favour of assessee. - ITA No. 4904/Del/2014 - Dated:- 30-9-2015 - Diva Singh, JM And N K Saini, AM For the Appellant : Shri Salil Agarwal, Adv. & Shailesh Gupta, CA For the Respondent : Shri T Vasanthan, Sr. DR ORDER Per N K Saini, AM This is an appeal by the assessee against the order dated 06.06.2014 passed by the ld. CIT(A)-XXV, New Delhi. 2. Following grounds have been raised in this appeal: "1. .....

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as added by learned assessing officer, whereas, purchases made and payments made to the said creditors through account payee cheques were accepted as genuine by the learned assessing officer. Thus, the addition so made by learned assessing office and sustained by learned CIT(A) is completely misconceived and misplaced in law and should be deleted, as such. 1.2 That the learned Commissioner of Income Tax (Appeals) has further failed to appreciate the basic fact that mere non production of credito .....

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h the said nine creditors were also made in preceding assessment year and payments were also made to the said creditors in subsequent assessment year, which stood accepted by learned assessing officer and as such, the addition so made and sustained is based on wholly and completely extraneous and irrelevant considerations and should be deleted, as such. 1.4 That the learned Commissioner of Income Tax (Appeals) has further grossly erred in relying on the judgments totally inapplicable to the fact .....

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acts of the appellant." 3. The grievance of the assessee vide Ground Nos. 1 to 1.5 relates to the sustenance of addition of ₹ 3,57,17,506/- made by the AO out of the closing balance of the sundry creditors. 4. Facts of the case in brief are that the assessee filed the return of income on 30.09.2009, declaring an income of ₹ 11,82,236/- which was processed u/s 143(1) of the Income Tax Act, 1961 (hereinafter referred to as the Act) on 29.10.2010. Later on, the case was selected fo .....

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sale consideration at ₹ 53,56,26,679/ and the net profit of ₹ 11,44,130/- was shown. The AO also pointed out that the G.P rate declared by the assessee for the assessment year 2007-08 was at 12.21%, in the assessment year 2008-09 it was 5.63% and for the year under consideration it declined to 1.97%. He, therefore, asked the assessee to explain the reason for G.P. rate down fall, year to year. The AO also noticed that the assessee had shown trade creditors of ₹ 4,63,89,077/- wh .....

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36,00,587/-do-do- 3. M/s Bharat Mehta & Co., CB- 10, Ring Road, Naraina, New Delhi 45,03,945/ -do-do- 4. M/s Gopal Jee Fabrics, K-30, Udyog Nagar, Peeragari, New Delhi 5,94,990/-do-do- 5. M/s Harish Enterprise, E-24, Jawahar Park, Laxmi Nagr, Delhi-92 35,13,854/- Left without addres -do- 6. M/s Meenakjshi Textiles, C-107, ABC Complex, 20, Veer Sarvarkar Block, Shakarpur, Delhi-92 35,00,300/- No such firm at this address -do- 7. M/s Ravel Apparels Inc., USB- 107, Mandawali, Faizalpur, Delhi-9 .....

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the amount of ₹ 3,57,17,506/- should not be added back in its income. The assessee submitted that litigations were going on with those creditors, but they were confirming the balance. The AO deputed one Inspector to make local enquiries. The Inspector reported that the said parties did not exist at the given address, vide his reports dated 20.12.2011, 21.12.2011 & 23.12.2011. The AO observed that the liabilities were neither finally determined nor due and confirmed by the creditors, t .....

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ion of ₹ 3,57,17,506 by adding the closings balances of nine creditors by observing at page 3 of the assessment order as under: ''As the assessee could not file the confirmations, notices u/s 133(6) were issued to these parties…… . . Inspector was deputed of this ward to make local enquiries and get confirmations from these creditors .... The assessee was confronted with the inspector's report, ... Since the liabilities are neither finally determine nor due and co .....

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t record and the confirmations of the creditors are available at page 90 to 99 of the assessment record and this fact is verifiable from the assessment record, which has already been called for by your honour. Copy of all the confirmations are placed at pages 125- 134 of the paper book. (2) The observation of the ld. ITO that the Inspector was deputed to make local enquiries and get confirmations from the creditors, it is submitted, is against the facts of the case as the perusal of the order sh .....

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re, submitted that the material gathered at the back of the assessee without confronting the same to the assessee has to be excluded from the consideration or cannot be read in evidence and for this submission respectful reliance is placed on the judgments mentioned in Annexure A. 5. It is further submitted that the perusal of the Inspector's Reports placed on the assessment record clearly reveals that the same have been prepared in one go and not on the purported dates. 6. The observation o .....

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record; (ii) the closing balances were duly discharged by the assessee in the succeeding year and in support thereof the assessee during the course of assessment proceedings vide 'letter dated 05-12-2011 (page 470 of the assessment record) filed the copy of account of the creditors for the subsequent year i.e. financial years 2009-10 (relevant to assessment year 2010-11), which are available at pages 414 to 463 of the assessment record and copies are at page 135-160 of the paper book. It is .....

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0-11), the assessee did not have any transactions with these creditors and therefore the assessee was not aware of their present address. (iii) During the year under consideration, the assessee made purchases of ₹ 26 crores (page 2) from these nine creditors against which payment of ₹ 23 crores (page 2) was made through the banking channels during the year under consideration itself; and in support thereof bank statement for the year under consideration are at page 17-124 of the pape .....

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onsideration itself (page 2) through proper and regular banking channels and the closing balances i.e. balance which remained outstanding as on 31-03- 2009 has also been discharged in the subsequent year, as explained herein above. 9. It is pertinent to mention that one creditor is an incorporated company, whose details are available on the official web-site of the Registrar of Companies. 10. It is, therefore, submitted that the ld. ITO erred in adding the closing balances i.e. balance which rem .....

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made under Section 68 in as much as it is not in dispute that the creditors outstanding related to purchases and the trading results were accepted by the AO. We are, therefore, of the opinion that no substantial question of law arises for consideration in this case. The appeal is accordingly dismissed." (ii) Eland International (P.) Ltd. v. DCIT and Vice Versa, (2009) 26 DTR 113 (Del) "In regard to ground NO. 1. It is mentioned in the assessment order that the assessee undertook transa .....

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urn, which was accented by the STO. No documentary evidence was filed in support of these transactions in order to verify the genuineness of the transactions, the AO issued notices under s. 133(6). It was found that M/s Allure Creations and M/s Ganesh Textile did not exist at the address furnished by the assessee. Notices were served on M/s Shashi Sales & Marketing (P) Ltd., and M/s M. V Marketing (P) Ltd., but these parties did not confirm the transactions. Therefore, the transactions were .....

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be said that the purchase were bogus. The finding of bogus sale can only lead to the inference that the corresponding amount should be deleted from the turnover of the assessee. The AO has also not rejected the books of account to estimate profit on these transitions in case it was a firm finding that purchase and sales were bogus…. In absence of displacing the finding of the learned CIT(A) and the fact that the assessee showed profit from these transactions, it is held that there is no .....

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s ITA No. 398/Asr/1999, asst. yr. 1994-95, where purchases made from the suppliers were not fully verifiable, the Tribunal., held that since no defects have been pointed out, trading addition was not called for. The most significant aspect considered by the Tribunal was that there could have no exports without there being purchases. This case related to trading addition and not addition under s. 68 of the Act. 12. It is therefore, most humbly and respectfully prayed that your honour may kindly b .....

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eparation of the supplemental statement of the case and no opportunity to cross-examine the manager of the bank could in the circumstances be sought or availed of by the assessee. It is true that the proceedings under the income-tax law are not governed by the strict rules of evidence and, therefore, it might be said that even without calling the manager of the bank in evidence to prove this letter, it could be taken into account as evidence. But before the IT authorities could rely upon it they .....

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so, the revenue authorities chose to rely merely on the statements contained in the letter and that too, without showing the letter to the assessee."" State of Kerala Vs. K. T. Shaduili Yusuff (1977) 39 STC 478 (SC), At STC page 492 The Department taking the stand that the returns filed by the assessee are incorrect and incomplete, whereas the assessee contended that their returns were correct and accounts of the wholesale dealers which form the basis of the information of the sales ta .....

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eedings before some other officers sometime in the year 1971-72 when admittedly the assessee was not given any opportunity to confront the said depositors by way of cross-examination." ITA No. 1035/2009 decided on 22.10.2009 (Del HC) ""The additions made by the Assessing Officer (AO) in reassessment proceedings carried out under Section 147 and 148 of the Income Tax Act were based on the statements of certain villagers, who had sold the land in question to the assessee. However, n .....

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said orders- This appeal is accordingly dismissed." CIT vs Rajesh Kumar (2008) 306 ITR 27 (Del) =218 CTR 691= (2008) 172 TAXMAN 74 The Tribunal has on these facts rightly come to the conclusion' that since the revenue relied upon the statement of Maheshwari, it should have been made available to the assessee with an opportunity of cross-examine him. This was not done by the Assessing Officer. It clearly shows that the principles of natural justice have been violated. We do not find any .....

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terprises (l994) 210 ITR 103 (Cal.), Kishinchand Chellaram v. CIT (1980) 125 ITR 713 (4 Taxman 29) (SC), Hirji Nagji & Co. v. CIT (1976) 105 ITR 286 (Ori.), J. K. Synthetics Ltd. v. ITO (1986) 19 ITD 102 (Delhi), 45 ITR 209 (sic) and CIT v. Biju Patnaik (1991) 190 ITR 396 (Ori.)." ""11..... it is well-settled legal position after the judgment of Hon'ble Supreme Court in the case of Kishinchand Chellaram v. CIT (1980)125 ITR 713-4 Taxman 29 that any material collected by th .....

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3) 49 ITR 561 (All), observed that it is the duty of the AO to enforce the attendance of a witness, if the witness is material, in exercise of his powers under O, 16, r. 10 of Cr. P. C; where the officer does not do so, no inference can be drawn against the assessee. Hon'ble Supreme Court in case of Prakash Chand Nahta v. Union of India & Ors, (2000) 163 CTR (SC) 310 - (2001) 247 ITR 274 (SC) held that crossexamination of the witness is must before the Department relies on the statement .....

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troduced its own unaccounted money - statement has not been confronted to the assessee. Held: 'it is discernible that the only material available with the AO to hold that it was accommodation entry was the statement made by a third party, i.e., Shri Praveen Khurana. The said statement, it is apparent, has not been confronted to the assessee as can be seen from the record of fee proceedings submitted before us in the paper book filed on behalf of the assessee. It is an accepted position in la .....

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e transaction as suspect is not on the basis of a credible evidence." In view of the aforesaid discussion, we are of the considered view that the Revenue does not have. enough material to justify the conclusion drawn to the effect that the impugned transaction was a sham transaction." AN Dhyaneswaran Vs ACIT (2004) 3 SOT 299 (Chennai) Amarjit Singh Bakshi (HUF) V ACIT (2003) 263 ITR 75 (AT) (Del) = (2003) 86 ITD 13 = (2003) 81 TTJ 169 'The Hon'ble Supreme Court in the case of K .....

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mission was a nullity because it was made in violation of the principle of natural justice. Therefore, in view of the decision of the apex Court, the additions made by the AO are not justified." "....I am not in agreement with the learned Departmental Representative when she contends that cross-examination is not part of the principles of natural justice. In my opinion, if this argument is accepted, then the statement recorded on which cross-examination is not allowed is also to be ign .....

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Rawatmull (1973) 87 ITR 349 and in the case of CIT v. Durga Prasad More (1971) 82 ITR 540." "The xerox copy of the loose paper and part of the statement on the basis of which addition has been made are nothing but the mere information received by the Assessing Officer from his counterpart in Mumbai. Such information cannot be considered as admissible material/evidence, unless it is corroborated by direct evidence, i. e. by the person who made the statement or who made jottings on the l .....

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amination. No doubt, the Assessing Officer is not fettered by technical rules of evidence, yet the basic principles of Evidence Act are applicable to the tax proceedings. Reference can be made to the Supreme Court judgment in the case of Chuharmal v. CIT (1988) 172 ITR 250 (38 Taxman 190). Since Dr. Tanna was neither examined by the Assessing Officer, nor the assessee was allowed an opportunity to cross-examine, in my opinion, the information used by the Assessing Officer suffers from serious in .....

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vs. ACIT (1999) 70 ITD 62 (Chd) - (2000) 69 TTJ 516 CIT Vs. Eastern Commercial Ent., (1994) 210 ITR 103 (CAL) = 123 CTR 217 AT CTR page 222 "As a matter of fact, the right to cross-examine a witness adverse to the assessee is an indispensable right and the opportunity of such cross-examination is one of the cornerstones of natural justice. Here Shri Sukla is the witness of the Department. Therefore, the Department cannot cut short the process of taking oral evidence by merely having the exa .....

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TR page 223 "Learned counsel then cited a host of decisions to bring home the point that no evidence or document can be relied upon unless it is shown to the assessee. Kishan Chand Chellaram v. CIT (1980) 125 ITR 713 (SC). Similarly, the requirement of cross-examination as the requirement of the rules of natural justice has been underlined by the Bombay High Court in Vasanji Ghela and Co. v. CST [1977] 40 STC 544. It is trite law that cross-examination is the sine qua non of due process of .....

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witness whose testimony the ITO intended to rely against the assessee such an evidence cannot be read against the assessee. Chuharmal v. CIT (1988) 172 ITR 250 (38 Taxman 190) Sana Electric Co. Vs. CIT, (1985) 152 ITR 507(Del) = 43 CTR 287 - In this case the Assessee received cash earlier and the buyer paid later. At ITR page 511 "If seems -that the ITO recorded the statement in the absence of the assessee thus excluding cross-examination by the assessee. This shows that the statement of Sh .....

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passed on him is true or not. If, as a result of his own independent enquiry he comes to the conclusion that the information received by him is true, he is at liberty to act thereupon after disclosing it to the assessee and affording to him a reasonable opportunity of rebutting it. But he has no right to burden the assessee with an extra amount of tax on a vague information given to him without verifying its truthfulness or reliability. Nathu Ram Premchand v. CIT (1963) 49 ITR 561 (All)- it is .....

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e immediately succeeding FY. (iii) The copies of accounts of all the nine trade creditors as appearing in the books of the appellant for the FY 2009-10 to prove that the factum of purchase and payments to all such trader creditors was a reality. (iv) The confirmations of account of all the nine parties to substantiate the claim that the parties were genuine, creditworthy and identifiable. The confirmations contained the PAN of all the confirmatories. (v) The statement of the bank of. Rajasthan L .....

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ade creditors impugned by the AO." 7. On the basis of the aforesaid documentary evidences, the assessee sought to establish that the credit transactions with the current sundry creditors were genuine. It was also submitted that if an assessee took care to purchase material by way of account payee cheques from a third party and subsequently, three years after the purchase, the said third party did not appear before the AO for any reasons like cessation of business, change of place of busines .....

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s were already made to them, no adverse inference should have been drawn. It was further stated that the assessee could not be expected to keep track of addresses of all its creditors specially when payments had already been made. It was pointed out that no material was brought on record to show that purchases were actually made by the assessee by tendering cash which was taken back in cash in lieu of cheque given to the creditors during the immediately succeeding financial year. The ld. CIT(A) .....

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P. Ltd., Gopaljee Fabrics, ASV Garments P. Ltd. & Randhir IT Solutions P. Ltd., indicating addresses different from those shown by the confirming creditors in their confirmatory letters. Actually the PAN holders, who were claimed to be the trade creditors, were either employees of the CA firm or of the same concerns in which they were employed. (iii) The eight sundry creditors, who were not traceable even by the time of remand proceedings, could not be produced by the appellant on the requi .....

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der:- (i) The appellant failed to produce the parties and their latest addresses along with their bank accounts details and income tax records. (ii) Summons could be served only on M/s Gopaljee Fabrics. In the cases of other persons the letters came back un-served with the remarks no such person/firm, left without address. (iii) Personal visits to the addresses shown by the appellant of the creditors turned out to be futile as none of the persons were found to be in existence. (iv) The law relat .....

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z., certified copies or attested copies of such documents, or copies made from the original by the mechanical processes which in themselves ensure the accuracy of the copy; copies compared with such copies; copies made form or compared with the original; and the oral accounts of the contents of a document given by some person who has himself seen it; (vii) It has been held in CIT v. Korlay Trading Co. Ltd. (1998) 232 ITR (Cal.) that "Where, without filing confirmation letter from the, credi .....

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ot enough; mere payment by account-payee cheque is not sacrosanct nor can it make a non-genuine transaction genuine." (ix) It has also been held in CIT v. United Commercial & Industrial Co. (P) Ltd. [1991] 56 Taxman 304/187 ITR 596 (Cal.) that It is necessary to prove prima facie identity of his creditors, capacity of such creditors to advance money and lastly genuineness of transactions; it would be wrong to hold that transactions were genuine merely because they were made by cheques.& .....

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s under: "Sub: Rejoinder in the case of M/s Hind Globe Links in appeal no.166/2011-12 AY 2009-10. Before we submit our rejoinder on the remand report of the Ld.AO, we would like to revive the back ground of the case and the issue involved for your honour' s kind consideration. Brief background of the case is that during the impugned assessment year under consideration, assessee (a partnership firm) was engaged in the business of manufacturing and trading of Export Garments. Assessee fir .....

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al year i.e. as on 3.3.2009, total Sundry Trade creditors were outstanding for an amount of ₹ 4,63,89,077/-. Besides domestic sales, exports sale was made by the assessee firm (to countries. i.e. USA and UAE). Assessee firm also incurred expenses on Printing & Dyeing, fabrication, cutting, knitting etc. For the impugned assessment year, Assessee firm filed its return of income declaring an income of ₹ 11,82,236/-. Purchases, sales, expenses incurred in manufacturing, amount recei .....

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e assessee, whereas the fact is that assessee filed confirmations from these nine parties as well during the course of assessment proceedings. The total outstanding payment to these trade creditors was ₹ 3,57,17,506/-. PB-311 is copy of the reply dated 14.10.2011 with which assessee filed confirmations in respect of the sundry creditors, and is placed in the file of the Ld. AO. These confirmations filed by the assessee were containing PAN of these sundry creditors and are also placed by th .....

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of the sundry creditors was paid in cash, and-their outstanding were cleared by the assessee through accounts payee cheques only. Ld. AO alleged in the impugned assessment order that notices u/s 133(6) were issued to these sundry creditors, which according to Ld. AO were received back unserved. Ld. AO made an addition of ₹ 3,57,17,506/- alleging "since the liabilities are neither finally determine nor due and confirmed by the creditors, the same cannot be accepted as liabilities. No e .....

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ng grounds of appeal:- 1. The order of the Ld. Assessing Officer is bad in law and on facts. 2. The addition of ₹ 3,57,17,506/- was made as income from undisclosed sources ignoring the fact that: a) The individual confirmation from parties received by the Assessee were placed on record. b) In certain cases, direct confirmation was' sent to the Assessing Officer u/s 133(6) which has been omitted to be recorded. c) Subsequent payment to all such creditors in the month of April-June, 2010 .....

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d to the appellant. No opportunity of cross examination of the Inspector was allowed to the assessee during the course of assessment proceedings. Therefore, no cognizance can be taken of any such report which has been obtained by the Ld. AO at the back of the assessee. Ld. AO made the impugned addition alleging that the liabilities were not finally determined and identity of creditors, genuineness of transactions and genuineness, of balances was not established. Ld. AO relied on the following ju .....

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se trade creditors, and the purchases made were sold subsequently, to various parties. Neither the purchases made nor the sales made are doubted, and the trading results have been accepted. Books of the assessee are duly audited by the statutory auditors, and, there is also no adverse observation of the statutory auditors Appellant relies on various pronouncements made by various High Courts, and Hon'ble Supreme Court, in this regard, and relied by the appellant in the written submissions pl .....

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were also provided by the assessee to the Ld. AO in order to establish the identity of these sundry creditors. Moreover, no payment was made to any of the sundry creditors in cash, and the payments were made only through banking channels. Ld. AO has alleged that identity of the sundry creditors has not been established by the appellant and the genuineness of the transactions have not been proved. It is submitted, that no bank account can be opened by any party without establishing their identity .....

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. Ld. AO has accepted the profit declared as per return. Ld. AO has doubted the identity of these sundry-creditors. It is submitted that when the purchases and sales have been accepted as genuine, where the question remains that these parties were not genuine? No sales can be made without purchase. If sales have been affected out of purchase made from these parties, then, it cannot be said that these parties were bogus. The AO has not rejected the books of account of the assessee, and has accept .....

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bstantial question of law arises for consideration in this case. The appeal is accordingly dismissed." Hon'ble Tribunal, Amritsar Bench held in the case of Amritsar Trading Co. Vs. ITO in ITA No. 586/ASR/1980, that in a case where purchases of the skins and hides were not doubted by the A 0, no addition could be made for the reason that the assessee failed to produce the suppliers who had sold the goods to the assessee. Where sales supported purchase and payment was made 'through ba .....

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eld order of Assessing Officer - Assessee filed letters of confirmation of suppliers, copies of bank statement showing entries of payment through account payee cheques to suppliers and stock reconciliation statements - Sales of purchased goods were not doubted and substantial amount of sales made by assessee was to Government department - Further, books of account of assessee had not been rejected - Tribunal deleted disallowance - Whether merely because suppliers had not appeared before Assessin .....

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ied having any business dealings with the Assessee Company?" Hon'ble Tribunal allowed the appeal of the assessee holding that merely because the suppliers have not appeared before the Assessing Officer or the CIT(A), one cannot conclude that the purchases were not made by the assessee. Commissioner of Income-tax v. JMD Computers & Communications (P.) Ltd. [2009] 180 TAXMAN 485 (DELHI) JANUARY 16, 2009 Section 143 of the Income-tax Act, 1961 - Assessment - Additions to income - Asses .....

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of one 'T', at whose premises a raid was conducted by department, that assessee had made bogus purchases from certain parties, FACTS The assessee was engaged in the business of trading in computer parts. The department had received information from the Assessing Officer of one 'T', at whose premises the department had carried out a raid, that the assessee had made bogus purchases from certain parties. During the assessment proceedings, the assessee was asked to identify and prod .....

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t through the evidence on record and found, inter alia, that a complete quantitative analysis between purchases made and corresponding sales had been prepared and filed by the assessee before the Assessing Officer and the quantitative analysis made had not been called into question by the Assessing Officer. The Tribunal held that the department having accepted the purchases, it could not have been assumed that the assessee had inflated its purchase by introducing fictitious purchases. The Tribun .....

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r of the Commissioner (Appeals). SYNTEXA V. ASSISTANT COMMISSIONER OF INCOME-TAX [2000] 111 TAXMAN 47 (CAL.) (MAG.) ITAT CALCUTTA BENCH 'E' Section 37(1), read with section 131, of the Income-tax Act, 1961 - Business expenditure - Allowability of - Assessment year 1991-92 - Whether assessee by furnishing names and addresses and relevant particulars of brokers as well as suppliers could be said to have discharged primary onus and when no defect could be found in books of account, payment .....

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ere made through account payee cheques which were duly shown in the books of account. No defect was found in the books of account submitted by the assessee. On the brokers the assessee had no control and if they became hostile, then the assessee could not be punished. The Commissioner (Appeals) had in principle accepted the genuineness of the payment made to the brokers. The payment towards brokerage/commission was made for rendering the services through account payee cheques. Some brokers had a .....

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could not be made without making purchase, in other words, when there was a sale, certainly there was a purchase. Sale was accepted by the department but not the purchase: The payments were made through account payee cheques which were duly shown in the books of account and balance sheet, etc. In the subsequent assessment year, the purchase from the same parties were accepted by the department which proved that the parties were in existence during the assessment year under consideration. This wa .....

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ons led to profit to the assessee, which was brought to tax. If sales had been effected out of purchases made from these parties, then it could not be said that the purchases were bogus. The finding of bogus sale can only lead to the inference that the corresponding amount should be deleted from the turnover of the assessee. The Assessing Officer had also not rejected the books of account to estimate profit on these transactions in case it was a firm finding that purchases and sales were bogus. .....

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se of raw material and towards payment of job work charges and claimed deduction of same - Assessing Officer denied deduction for reason that assessee claimed bogus purchase price and job work charges to evade tax and made addition of certain amount to income of assessee - Whether since assessee established its claim by furnishing relevant bills, bank statements and considering fact that without purchase of raw material and job work charges incurred, manufacture could not have been possible, add .....

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wn in its stock, in such circumstances merely because those purchases did not carry full addresses of vendors, could not be a reason to treat said purchases as unexplained. Therefore, impugned addition made by Assessing Officer was to be deleted. (A.Y. 2008-09) In view of the above legal position, no addition is attracted in the case of the appellant. Appellant firm filed written submissions and the paper book during the course of appellate proceedings, on which a remand report was called from t .....

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nd made payments to these parties through account payees cheques only. Assessee has no mechanism with it, to first find the PAN details, and then to make purchases. Assessee made purchases from the parties in normal course of business, and goods purchased from these parties were subsequently sold, for which sales have been declared by the assessee which have duly been accepted by the Ld. AO. Even the purchases have not been disputed. Ld. AO made addition of the outstanding balances as on 31.3.20 .....

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Ld. AO has confirmed in this remand report in para 9.2 that assessee vide reply dated 16.11.2012 has given the bank account details of following four parties:- 1. M/s Harish Enterprises. 2. M/s ASV Garments (P) Limited 3. M/s Sangeeta Traders 4. M/s Bharat Mehta & Co In the remand report dated 8.4.2013 ld. AO has confirmed that reply has been received from M/s Gopaljee Fabrics. Therefore, no adverse view may kindly be taken in respect of this party and the addition made in respect of this pa .....

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y the Ld. AO in the remand report are as unde 1. M/s Amar Jyoti Enterprises - Amount outstanding as on 31.3.2009 as payable ₹ 40,01,568/- With regard to above party, it is respectfully submitted that during the year under consideration assessee made purchases for an amount of ₹ 4,26,82,061/- and made payment during the year for an amount of ₹ 4,13,58,173/-. There was an opening credit balance of ₹ 26,77,680/-. as on 1.4.2008 and closing credit balance of ₹ 40,01,568 .....

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the PAN allotted is in the name of Shri Ranjit Singh, 213, Vardhman Tower, Preet Vihar Delhi-92. It is submitted that in case there was any doubt to the Ld. AO about this party, ld. AO could have verified these facts from the Bank of the assessee, as the payments made by the assessee to the said party were cleared from the bank of the assessee. Not only that the outstanding amount payable of ₹ 40,01,568/- was also paid by the assessee to the said sundry creditor in the subsequent year. Co .....

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and payments received from the said party are also highlighted in the copy of bank statement being filed with this rejoinder. Thus the transactions entered into with this party are established with these evidences. 2. M/s ASV Garments (P) Limited - Amount outstanding as on 31.3.2009 as payable ₹ 36,00,587/-. With regard to above party, Ld. AO confirmed in the remand report dated 8.4.2013 that the said party was existing at the address provided i.e. D-7, Maharani Bagh, New Delhi, and now t .....

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ervations made by the Ld. AO it cannot be a reason to make addition for the outstanding balance payable to this party, just for the reason that after a gap of more than 2-3 years, party was not found at the given address, and when assessee also provided the bank details of the said party to the AO. Assessee had also provided to the Ld. AO details of bank account of the said party. In case there was any doubt about making the payment to the said party, Ld. AO could have conducted enquiries from t .....

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30,56,625/-. There was an opening credit balance of ₹ 12,60,000/- and closing credit balance of ₹ 36,00,587/- payable by the assessee to the said party. Ld. AO has accepted the entire purchases made by the assessee, and there is no dispute for making payment to the said party. The outstanding payment of ₹ 36,00,587/- was paid to the said party in the subsequent financial year. We are submitting herewith copy of the ledger account of the above party for the subsequent period 1.4 .....

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N exists in the name of Shri Manoj Kumar, who has given his address to the Department as C-397, Chajjupur, Shahdara, Delhi. During the course of remand proceedings assessee provided the bank detail of this party to the Ld. AO, which has been confirmed by the Ld. AO in the remand report. Ld. AO has not disputed that payments made by the assessee were not credited in these parties accounts. Ld. AO obtained the bank statement of this party from Mahamedha Urban Cooperative Bank Ltd. Ld. AO stated th .....

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ns no reason to sustain addition in the hands of the assessee firm. It is, therefore, prayed that the addition made may kindly be directed to be deleted. 4. M/s Gopaljee Fabrics - Amount outstanding as on 31.3.2009 as payable ₹ 5,94,990/- Ld. AD has confirmed in para 3 of the Remand report that reply has been received from the above concern. Ld. AO has stated that incomplete information has been received from the said concern .. In any case the information provided by the said party is not .....

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was also obtained. Ld. AO conducted enquiries with the jurisdictional Assessing Officer of the sundry creditor. It is submitted that there is no adverse comments of the Ld. AO that the payments made by the assessee to this party either were not credited in their bank account, or assessee has not made payment to the said party against purchases made. We have placed in the paper book copies of the ledger accounts of the above party for the impugned assessment year and also for the subsequent asse .....

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ed in the subsequent year, the addition made may kindly be directed to be deleted. PB 242 is copy of ledger account of the above party for the period 1.4.2009 to 31.3.2010 in the books of the assessee. PB 243-251 are copies of the sales bills raised against sales made to the above party for the period 1.4.2009 to 10.4.2009 . PB 273 is copy of the bank statement of the assessee showing the payment received from the above party for sales made to them in the subsequent year. 6. M/s Meenakshi Textil .....

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n is made by the AO, for which no cross examination has been provided to the assessee, that may kindly be excluded from consideration. Furthermore, it is submitted that it is not the case of the Ld. AO that the said party has denied the payment received from the assessee firm or have denied the sales made to the assessee firm. For the' assessment year under consideration assessee made purchases from the said concern, and the purchases made were sold to various parties for which sales were al .....

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year. In view of these evidences placed on record, which substantially prove that the outstanding payment was cleared in the subsequent year, the addition made may kindly be directed to be deleted. PB-252 is copy of ledger account of the above party for the period 1.4.2009 to 31.3.2010 in the books of the assessee. PB 253-257 are copies of the sales bills raised against sales made to the above party for the period 1.4.2009 to 10.4.2009. 7. M/s Ravel Apparels Inc. - Amount outstanding as on 31.3 .....

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cross examination has been provided to the assessee that may kindly be excluded from consideration. Furthermore, it is submitted that it is not the case of the Ld. AO that the said party has denied the payment received from the assessee firm or have denied the sales made to the assessee firm. For the assessment year under consideration assessee made purchases from the said concern, and the purchases made were sold to various parties for which sales were also declared by the assessee. At the end .....

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cord, which substantially prove that the outstanding payment was cleared in the subsequent year, the addition made may kindly be directed to be deleted. PB-258 is copy of ledger account of the above party for the period 1.4.2009 to 31.3.2010 in the books of the assessee. PB 259-263 are copies of the sales bills raised against sales made to the above party for the period 1.4.2009 to 10.4.2009. 8. M/s Sangeeta Traders - Amount outstanding as on 31.3.2009 as payable ₹ 50,00,112/- Ld. AO has c .....

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e paper book copies of the ledger accounts of the above party for the impugned assessment year and also for the subsequent assessment year, where in the outstanding payment of ₹ 50,00,112/- were made clear. It is submitted that in the subsequent year also, assessee made purchases from the above party, and payment was made of the above amount as well as of the subsequent purchase made. Assessee has also enclosed a copy of its bank statement for the subsequent year which confirms the payment .....

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.2009 as payable ₹ 70,01,100/- Ld. AO has alleged in the remand report that the said firm was not found at the address provided. On verification of PAN, Ld. AO observed that the same is in the name of Shri Rajesh Kumar R/o of 229128, E-2, Gali No. 20 Railway Colony, Mandawali, Delhi-92, but he found that the said address was not correct, It is submitted that it is not the case of the Ld. AO that the said party has denied the payment received from the assessee firm or have denied the sales .....

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lls for material sold to the said party in the subsequent years are enclosed, which confirm that the outstanding balance payable to them was cleared in the subsequent year. In view of these evidences placed on record, which substantially prove that the outstanding payment was cleared in the subsequent year; the addition made may kindly be directed to be deleted. PB 266 is copy of ledger account of the above party for the period 1.4.2009 to 31.3.2010 in the books of the assessee. PB 267-271 are c .....

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s 133(6) were received back unserved. Ld. AO also alleged that inspector was deputed at the address provided but these parties were not found at the address provided and therefore, the AO alleged that the genuineness of these creditors was not established. It is submitted that assessee made purchases from these parties and the goods purchased were sold. Ld. AO has not disbelieved the purchases or sales as book results have been accepted by the Ld. AO. It was explained to the Ld. AO during the co .....

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d. AO himself have annexed PAN particulars of all these parties in RR3. Ld. AO alleged that out of nine parties eight parties are not traceable, assessee provided the last known address as available with the assessee and requested the Ld. AO to use his ample powers to trace out these parties through banking channel and through Pan Numbers as all payments were made through banking channel. Assessee also provided the bank account details in respect of four creditors, which are: • Harish Enter .....

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were requested to-provide the ITR details filed for Assessment Year 2009-10. Though, the Ld. AO made some adverse observation in the case of M/s Meenakshi Textiles but nothing contrary is brought on record that M/s Meenakshi Textiles and Ravels Apparels INC have denied the transaction with the assessee firm It is submitted that the action taken by the AO to make enquiry with the banks and with assessing officers confirms the existence of these parties and their identity therefore, there is no lo .....

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has no power to get confirm PAN number is provided by any party when the same is requested by the assessee from the party. It is further submitted that assessee also cannot keep a track as to under which account the party is depositing their sales proceeds. In view of the above since, all these parties have been confirmed by the Ld. AO that these are assessed to tax and not even a single penny has been paid by the assessee to them against purchases made from them that additions made may kindly .....

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of the, assessee, no purchases made are held as bogus by the Ld. AO. Hon'ble ITAT was pleased to delete the additions made in the above case and held as under:- 2. Assessee also filed confirmations from the parties from whom purchases were made. l. Assessee was engaged in the business of manufacturing readymade garments. Assessee made export sales. Assessee claimed purchases of ₹ 44,07,271/- and sales of ₹ 64,02,504/-. 3. Purchases and sales made by the assessee have been accept .....

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realized subsequently from the purchasers in the bank account of the assessee. 5. Assessee is also maintaining complete books of accounts which were produced by the assessee before the AO and were examined by the AO during the course of assessment proceedings. Books of accounts of the assessee are duly audited by the Statutory chartered accountants. 4. No cross examination by assessee. Additions have been made solely based on statement of few parties. 6. Assessee has also made payments of all pu .....

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neness of outstanding trade sundry creditors to the extent the amount which was outstanding payable as on close of the year. However, there was no dispute about the transactions, or making payments to these sundry creditors for the purchases made from those creditors, corresponding sales made, and corresponding payments made by the assessee to these sundry creditors. 3. Ld. CIT (A) deleted the addition, and order was confirmed by the Hon'ble ITAT. 2. In assessee's case also no purchases .....

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;bel ITAT noted: 4. Assessee has also furnished copies of the corresponding sales bills. i) Assessee was maintaining complete accounts, including daily item-wise, stock register purchase book sales, sales book, purchase bills and sales books Assessee draws parity from the judgment of Hon'ble ITAT. ii) All payments for purchases have been made by cheques AO disallowed the outstanding credit balances of the sundry creditors for purchases. iii) Department has accepted the purchases. In support .....

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were made through A/c payee cheques only. Sales have not been doubted. In the assessee's case purchases were made during the F.Y. 2008-09 wherein the enquiries were conducted by the AO in the F.Y. 2011-12 Confirmation letter has been filed by the supplier As the sales made by the assessee has been accepted the purchases made stands proved as no sale can be made without purchases. Copy of invoice for purchase and copy of bank statement indicate tha purchases were in fact made. Hon'ble Hig .....

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the above judgment Hon.ble High Court of Allahabad upheld the finding of the Hon'ble Tribunal that when credits in the accounts of the persons on account of purchases made and if these purchases made are not bogus though the name of suppliers may be wrong but these supplies of goods were reality. Neither the purchase nor sales are doubted. For wrong names of supplies the reality of purchases cannot be negative. In the case of assessee also, confirmation letter of trade creditors were submit .....

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t be made, merely because assessee failed to provide complete address of vendors in respect of those purchases. Assessee also submitted copy of ledger a/c of these trade creditor for subsequent year showing either the payment made through a/c payee cheque or through sale made to them for which copies of sales bill are placed in the Paper Book It is the case of Jewellers where purchases were being made by assessee and no address was kept on the ground that: Assessee also made export sales Nature .....

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s of certain parties were not available. Parity is drawn from this judgment of High Court that in the case of assessee purchases/sales have been accepted by the Ld. AO, therefore, creditors appearing for purchases made cannot be added to the income of the assessee. Assessee produced the books of accounts which were verified by the AO. There is no means available to the assessee to ensure that such addresses were right. Assessee draws parity from this judgment of Hon'ble High Court. Assessee .....

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ssman while making purchase is suppose to obtain a bill for the purchases made and to obtain a receipt in case cash payment is made or no receipt is required" if payment is made only through A/c payee cheque or bank draft only. The appeal filed by the revenue was dismissed Once the possession or delivery of goods is taken and the payment is made no businessman can be expected to keep a track as to where the party goes once the transaction is over. In case of assessee also AO made the additi .....

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e AO. No discrepancies or defects were found in the book of account as has been maintained in regular course. As held in the above judgment any assessee or businessman cannot insist for identification process akin to Know Your Customer (KYC) Rules applied by Banks Purchase have been held to be genuine and accepted as such, the credits that remained outstanding in such account cannot be treated to have remained unexplained As held in this judgment that there is no mandatory requirement in the bus .....

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es nor sales are doubted. Payments made to these Karigars in the subsequent year(s) have not been adversely viewed in the assessment. The appeal filed by the revenue was dismissed. Payment has been made through a/c payee cheque or through sale made to them for which copies of sales bill are placed in the Paper Book. As the sales made by the assessee has been accepted the purchases made stands proved as no sale can be made without purchases. CIT Vs. Jain Exports (P) Lid. (2013) 217 Taxman 54 (Del .....

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mplied the notice issued by AO or the notice send by AO were returned back as was served, therefore in the case of assessee also no addition can be made just for reason nearly supplier did not appear in response to notice issued. In this caseAO has received confirmation only from one party In the case, AO disallowed the outstanding credit balances of the sundry creditors for purchases AO has issued notices u/s 133(6) of the act to creditors, for verifying the credit balance outstanding against t .....

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received back The appeal has decided in favour in assessee In support assessee produced complete books of accounts before the AO and the purchase and sales were accepted No adverse view was taken from the books of accounts produced 10. The ld. CIT(A) mentioned that the remand report dated 21.03.2014 was simply a reiteration of the earlier remand reports submitted by the AO and as handed over to the assessee for its fresh comments. The assessee in its comments stated as under: ''Appellant .....

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r was received by the assessee on 10.03.2014 which is evident from the copy of the envelope enclosed Thus, it was not possible for the assessee to appear before the Ld. AO on 5.3.2013 when the letter itself was received on 10.03.2014, i.e. after the date fixed for hearing. There after assessee received another letter dated 11.03.2014 fixing the remand proceeding for 18.03.2014. AR of the assessee Shri Kailash Mittal, Advocate; attended before the Ld. AO and specifically asked to kindly inform as .....

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4, Shri Kailash Mittal, AR of the appellant attended before the Ld. AO three times i.e. on 12th, 14th, and 18th of March, 2014, but neither any presence was marked by him, nor any specific information was asked by him. An affidavit of the AR in this regard is enclosed. It is submitted that in the remand report submitted Ld. AO relied on the remand report submitted by his predecessor on 08.04.2013 to which appellant has already submitted a rejoinder on 15.11.2013 before Your Honour, where in appe .....

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ls filed does not prove or lead to the conclusion that the business transactions had actually taken place. It is submitted that nothing contrary has been brought on record by the Ld. AO to controvert the payments appearing in the bank statement that these are not against the purchases made from these sundry creditors, when the Bank statement filed specifically shows the name of sundry creditor to whom the payment was made. In case there was any doubt the Ld. AO could have made inquiry from the b .....

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uent year. It is also not out of place to mention here that Ld. AO has not doubted the payments made to these parties for the purchases made which were made during the year itself However, for the same sundry creditors, Ld. AO doubts the outstanding balance payable as at the close of the year despite the fact that those balances for which the addition has been made were also paid off in the subsequent year. In view of the above submissions it is prayed that the impugned addition may kindly be di .....

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ionship with nine of the trade creditors for the impugned assessment year as well as the immediately succeeding assessment year, but the glaring fact remained that the assessee miserably failed to produce trade creditors and satisfactorily explaining the reason for their non-production and dispelling the doubts arising from their PANs which on enquiry were found to be pertaining to the employees of the CA firms or the companies in which they were allegedly employed. The ld. CIT(A) further observ .....

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herefore, in the absence of the stock register it could not be demonstrated by the assessee whether the goods purchased on credit from the so called trade creditors were duly accounted for or not in the books of account. The ld. CIT(A) supported the findings of the AO for the following reasons: "(i) The appellant failed to produce the parties and their latest addresses. (ii) Summons could be served only on M/s Gopaljee Fabrics. In the cases of other persons the letters came back un-served w .....

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nd why there was no documentary proof for such expenditure. If he has any satisfactory evidence to show that documentary evidence was lost or destroyed, he may take recourse to secondary evidence." 12. The ld. CIT(A) held that the assessee failed to establish the identity, genuineness and the creditworthiness of the trade creditors. He also observed that the essential evidence in the form of the "person" of the trade creditors was starkly missing and the genuineness of the transac .....

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ore the authorities below and further submitted that the opening balance of the purchases, the payments made to the parties from whom purchases were made had been accepted by the AO. It was further stated that the books of account were audited which were accepted by the AO who only doubted the closing balance in the accounts of the nine parties from whom purchase were made. Therefore, the AO was not justified in making the addition by doubting the balance outstanding in the name of the parties f .....

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(Bom) 14. It was further stated that the assessee furnished the confirmations before the AO vide letter dated 05.12.2011 (a reference was made to page no. 443 of the assessee's paper book). The ld. Counsel for the assessee also referred to page nos. 502 & 503 of the assessee's paper book and submitted that the balance outstanding from 50 parties was to the extent of ₹ 52,28,52,754/- but the AO doubted only 9 parties to whom payments were made in the subsequent year. It was furt .....

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stated that in the said letter dated 22.12.2011, the assessee stated that the assessee was engaged in prolonged litigation with the people who were having outstanding credit balance and were currently absconding, however, their individual confirmation had been received during audit and had been submitted. It was further stated that in the said letter vide para 7, the ledger accounts of the parties showing the subsequent payment through account payee cheques was already furnished and they confirm .....

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ch are placed at page nos. 579 & 580 of the assessee's paper book) asked the assessee to furnish the details of the sundry creditors and the assessee vide letter dated 04.06.2012 stated to the AO that the confirmation of the 9 parties for the year under consideration, closing balance of which had been added to the returned income, were filed during the course of assessment proceedings. It was also submitted that a chart showing opening balance, purchases, payments, sales and closing bala .....

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e assessee's paper book). It was also submitted that the AO although mentioned that he deputed one Inspector to make local enquiries and to get confirmation from the creditors but no such entry was there in the order sheet relating to the assessment proceedings and even the report of the Inspector was never confronted to the assessee. The ld. Counsel for the assessee referred to page no. 635 of the assessee's paper book which is the copy of letter dated 16.11.2012 written to the AO where .....

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ddresses but no further enquiry was made by the AO and all the purchases were accepted. Therefore, the addition made by the AO was rightly deleted by the ld. CIT(A). The reliance was placed on the following case laws: CIT Vs Real Time Marketing (P) Ltd. 306 ITR 35 (Del) Kishinchand Chellaram Vs CIT 125 ITR 713 (SC) Kankaria Textiles Vs CIT 200 ITR 408 (Raj.) 15. In his rival submissions the ld. DR strongly supported the orders of the authorities below and further submitted that the AO specifical .....

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ineness of the transactions was not proved. It was stated that only on this basis that purchases were accepted the creditworthiness of the parties cannot be established. It was further stated that the AO gave ample opportunities to the assessee to produce the parties, however the assessee never produced the parties and the notices issued u/s 131 of the Act were returned by the postal authority stating that the parties mentioned in those notices "left the premises". Therefore, the parti .....

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ugglilal Kamlapat Vs CIT 73 ITR 702 (SC) Natco Pharma Ltd. Vs DCIT 263 ITR 701 (Hyd.) 16. We have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, it appears that a sum of ₹ 52,28,52,754/- was outstanding in the name of 50 parties against the purchases made by the assessee. The details of those parties is placed at page nos. 501 to 503 of the assessee's paper book. The AO doubted the balance outstanding .....

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plex, 20, Veer Savarkar Block, Shakarpur, Delhi-110092 3. Bharta Mehta & Co. ATEPK1882B CB-10, Ring Road, Naraina, New Delhi 4. Gopal Jee Fabrics AGGPK2523C Plot No. 650, Near Mundka Mod, Metro Pillar No. 504, (Nasha Mukti Kender Wali Gali), Mundka, New Delhi-110041 5. Harish Enterprises ATEPK1882B E-24, Jawahar Park, Laxmi Nagar, Delhi- 110092 6. Meenakshi Textiles BDBPS4815A Shop No. 12, Sharda Market, Subhash Road, Gandhi Nagar, Delhi-110031 7. Ravels Apparels INC BDBPS4815A USB 107, Mand .....

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the confirmation of outstanding balance obtained from the said parties but those parties could not be produced for the reason that a prolonged litigation was going on and the parties were absconding. However, the assessee furnished the details of their bank account wherein the payment made by the assessee in the subsequent year was credited. The assessee also furnished copy of its bank Account No. 27971 with Bank of Rajasthan to substantiate that the payments were made to the parties in question .....

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of the said nine parties are placed at pages 125-134 of the paper book filed before the Hon'ble CIT(A) and bank statement of the assessee for the year under consideration are at pages 17-124 of the paper book filed before the Hon'ble CIT(A), perusal of which clearly reveals that all the payments were made to the parties through regular banking channel . It is further submitted that copy of account of the said nine parties for assessment year 2010-11, are placed at pages 135- 160 of the p .....

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known addresses as per the records of the Assessee, as the Assessee did not had any business transactions with these parties after the financial year 2009-10, except M/s Gopal Jee Fabrics Your honour are therefore requested to kindly accept the closing balance of the said nine parties as genuine and in case your honour are unable to accede to the request of the assessee, the reasons and basis for the same may kindly be communicated to the assessee to enable the assessee to make further submissio .....

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ose books were accepted by the AO and all the trading results except the outstanding balance in the name of 9 parties to the extent of ₹ 3,57,17,506/- were accepted. In our opinion, the AO at the same time cannot blow hot and cold from the same wind pipe. In the instant case, the AO accepted the trading results and the explanation for fall in the G.P rate furnished by the assessee, so there was no reason for doubting the outstanding balance in the name of sundry creditors when the purchase .....

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ssee. It had recorded a finding that the two amounts represented the purchases made by the assessee on credit and, therefore, the provisions of Sec. 68 could not be attracted in the present case. The view taken by the Tribunal on this issue is sustainable inasmuch as, on the basis of the findings recorded by it that these two amounts represented purchases made by the assessee on credit and the purchases and sales having been accepted by the Department, the question of addition of the said two am .....

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ditions on account of bogus purchases not only on the basis of stock statement i.e. reconciliation statement, but also in view of the other facts. The Tribunal records that the Books of Accounts of the respondent-assessee have not been rejected. Similarly, the sales have not been doubted and it is an admitted position that substantial amount of sales have been made to the Government Department i.e. Defence Research and Development Laboratory, Hyderabad. Further, there were confirmation letters f .....

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the sellers and the canvassing agents have not been produced before them. We find that the order of the Tribunal is a well reasoned order taking into account all the facts before concluding that the purchases of ₹ 1.33 crores was not bogus. No fault can be found with the order dated 30- 04-2010 of the Tribunal." 21. In the present case also the assessee made the purchases of ₹ 52,28,52,754/-. Against the said purchases an amount of ₹ 4,63,08,977/- was outstanding in the na .....

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In our opinion, the said addition was not justified because the provisions of Section 68 of the Act relates to the "cash credit", however, the amount in question was on account of outstanding balance of the creditors and the purchases from the said creditors had been accepted by the AO. In the present case, there was no cessation of the liability and even the payment made to the creditors in the subsequent year was not doubted, so there was no occasion to make the addition by consideri .....

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