TMI Blog2011 (1) TMI 1490X X X X Extracts X X X X X X X X Extracts X X X X ..... ed here that the appeal of the assessee was dismissed for non-prosecution on 19.10.2009. On an application made by the assessee, this order was recalled on 13.8.2010 with a view to decide the same on merits. 2. Before us, the ld. counsel for the assessee submitted that the matter has come up before the Tribunal for the second time. In the first order dated 28.7.2006, the matter was restored to the file of the AO with a direction to re-frame the assessment as per law after allowing proper opportunity of being heard to the assessee. A copy of this order has been placed in the paper book on page nos. E to H. The submissions of the ld. counsel before the Tribunal at that time were that the assessee was not allowed to cross-examine M/s Unifoil Enterprises and without doing so, the AO cannot use the statement made by its representative to the effect that no sale was made to the assessee. It was further submitted that the bills of purchase had been filed and no evidence was brought on record by the AO to prove non-genuineness of the bills. The bills contained the sales-tax number of M/s Unifoil Enterprises. It was also submitted that if purchases are treated as bogus, then the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 66,15,000/- as per two bills dated 2nd May, 1994 and two dated 11th May, 1994. These purchases were made by the company through Mr. Ravi Handa and Mr. Satish Handa, our directors of the company. It is found that the payment of ₹ 66,15,000/- is still outstanding in our books of account. In this connection, an enquiry has been made from you by the assessing officer i.e., Income-tax Officer, Ward 18(1), New Delhi through the summons dated 15.1.1998 duly received by you on 22.1.1998. We were informed that you have denied about selling the goods to us during the period 1.4.1994 to 31.3.1995 i.e., assessment year 1995-96. The denial was made by you vide letter dated 23.1.1998 which was duly been received vide receipt no. 573 on 2nd Feb., 1998 in the Income-tax office. It is submitted that your denial about the sale of goods clearly give rise to the conclusion that you are not interested in getting the payment of ₹ 66,15,000/-. Since sale was made through sale bills lying with us your denial of sale cannot be accepted. Our case is pending before ITO, Ward 18(1), New Delhi which is required to be finalized in order to confirm about the purchases made from you. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not received within 10 days, the liability will be deleted from the books of the assessee. Reliance has also been placed on submissions made before the AO in letter dated 27.12.2007, in which it is inter-alia mentioned that the Income Tax office at Mumbai has made enquiries about the specific bills only. The proper course of action would have been to examine the books of account, stock and purchase of stamping foils made by M/s Unifoil Enterprises, which were supplied to the assessee. Mere denial would have no adverse effect on the case of the assessee. In view of the aforesaid, it is agitated that the additions have been wrongly made. 2.6 It was also submitted that the amount has been written off in the previous year relevant to assessment year 2007-08 and such credit has been included in the income in the assessment order of that year. A copy of the assessment order is placed in paper book on page nos. 45 and 46. The order shows that the assessee had filed nil return and was assessed as such u/s 143(3). The assessment order specifically shows that liability of ₹ 66,15,000/- in respect of M/s Unifoil Enterprises was written off and in this connection it is mentioned tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sale bills furnished by the assessee were shown to him and he was asked to confirm whether the bills were issued by him and whether any sale was made to the assessee in the period 1.4.1994 to 31.3.1995. It was deposed that the answer had already been given in letter dated 23.1.1998. It was reiterated again that no sale had been made to the assessee. On the basis of these facts, the AO concluded that the assessee did not make any purchase from M/s Unifoil Enterprises but made purchases from some other party, to whom the payment was made in cash. Therefore, the addition was made in respect of unexplained cash u/s 69. The ld. CIT(A) modified the findings of the AO. It was mentioned that during the appellate proceedings on being asked regarding the seizure of one of the consignments by the DRI, value of which was shown at ₹ 81,30,200/- but its actual value was put at ₹ 40,581/- only. In view of this fact, it was held that the assessee is indulging in over-invoicing of goods. Therefore, the addition of ₹ 66,15,000/- was upheld and the deduction was not allowed u/s 80HHC. 5.1 The case of the ld. counsel is that the revenue should have allowed the assessee an opport ..... X X X X Extracts X X X X X X X X Extracts X X X X
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