TMI Blog2020 (9) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... I 1295 - DELHI HIGH COURT] supports the case of the assessee and therefore, respectfully following this Tribunal order and in view of the above discussion, we decide this issue in favour of the assessee. Non genuine payment - Addition of payments were otherwise than by an account payee cheque - disallowance was made by the AO on this basis that the AO issued notices to verify these transactions under section 133(6) of the Act and these notices were sent by the AO by Speed Post Acknowledgement Due (SPAD) to the 10 entities out of 28 entities on a Test Check Basis but these notices has been returned unserved - HELD THAT:- W e set aside the order of CIT(A) on this issue and restore this matter back to the file of AO for a fresh decision with the direction that the assessee should furnish the comparison of quantity of opening stock + purchase and closing stock + sales and if there is no difference in such two quantities and difference, if any is explained/reconciled then quantity of purchase should be accepted and in case of unexplained difference in such two quantities, only such unexplained difference in quantity should held to be bogus claim. Regarding the pricing part also, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purchase of coffee which is found in the closing stock. 3. The learned Commissioner (A) ought to have appreciated that the appellant had furnished all the details and evidence in this regard and in the circumstances the disallowance was opposed to law and liable to be deleted. 4. The learned Commissioner (A) erred in upholding the expenses to the extent of ₹ 1,11,77,323 / - alleging that the payments were otherwise than by an account payee cheque which stood not proved. 5. The learned Commissioner(A) ought to have appreciated that all the expenditure incurred were in the course of business and for the purpose of business for which the adequate evidence was let in by the appellant and consequently the disallowance was opposed law and liable to be deleted. 6. The learned Commissioner (A) ought to have appreciated the disallowance was made only on surmises alleging that the letters addressed to the parties were returned unserved without appreciating that the payments were through banking channels and supported by the bills for supplies which has been gone into the trading account of the appellant and in the circumstances the disallowance was unwarranted a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DR of the Revenue supported the orders of the authorities below. 5. We have considered the rival submissions. First of all, we reproduce relevant provisions of explanation of clause (a) of section 145A of the Act. The same reads as under: 145A. Method of accounting in certain cases.- Notwithstanding anything to the contrary contained in section 145, the valuation of purchase and sale of goods and inventory for the purposes of determining the income chargeable under the head Profits and gains of business or profession shall be- (a) in accordance with the method of accounting regularly employed by the assessee; ( b ) further adjusted to include the amount of any tax, duty, cess or fee (by whatever name called) actually paid or incurred by the assessee to bring the goods to the place of its location and condition as on the date of valuation. Explanation. -For the purposes of this section, any tax, duty, cess or fee (by whatever name called) under any law for the time being in force, shall include all such payment notwithstanding any right arising as a consequence to such payment. 6. As per the above provisions, it is seen that it is provided therein that va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the file of the AO and if this is done, she will furnish full details in this regard and will also explain the difference in quantity if any and regarding pricing also, she will bring on record the necessary evidence. Learned DR of the Revenue although supported the order of CIT(A) but regarding this proposition, put forward by the Bench in respect of quantitative comparison as noted above and to examine the reasonableness of the price by making enquiries in the local market, she also submitted that the matter may be restored back for this purpose. 8. We have considered the rival submissions and in view of the above discussion, we set aside the order of CIT(A) on this issue and restore this matter back to the file of AO for a fresh decision with the direction that the assessee should furnish the comparison of quantity of opening stock + purchase and closing stock + sales and if there is no difference in such two quantities and difference, if any is explained/reconciled then quantity of purchase should be accepted and in case of unexplained difference in such two quantities, only such unexplained difference in quantity should held to be bogus claim. Regarding the pricing part al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of hearing, it was submitted by learned DR of the Revenue that ground No.1 is general. Regarding ground No.2, he supported the Assessment Order whereas learned AR of the assessee supported the order of learned CIT(A). 12. We have considered the rival submissions. We find that in para 5.5 of the Assessment Order, it is noted by the AO that the assessee company was asked to furnish supporting documents and evidences of the services as claimed to have been received from the various entities with invoices, bills, receipts, break-up of expenses, bank statements including names and list of clients to whom sales have been made including comparative statement of the new clients in the Assessment Year 2008-09 and 2009 - 10. It is further noted by the AO in para 6.5 of the Assessment Order that the assessee company only reiterated that services have been availed by the assessee company but did not furnish documents / evidences required by the AO. We also find that this issue was decided by learned CIT(A) as per para 6 of his order and the only basis of this decision is this that as per the assessee, all these transactions are genuine transactions which are routed through Bank by d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em, she submitted that the corresponding bill of ₹ 3,64,500/- is available on page 7 of the Paper Book and the corresponding payment was made by way of cheque on 06.05.2008 and the Bank statement is available on page 9 of the Paper Book which is showing this payment by way of transfer to HDFC bank of the supplier and the corresponding bank statement of the supplier in HDFC Bank is available on page 10 of the Paper Book where the receipt of the payment is available of ₹ 3,64,500/-. She submitted that in this manner, the assessee has brought on record all necessary evidences showing that all the payments made by the assessee company to these two suppliers were by way of cheques and therefore, none of these payments is hit by section 40A (3) of the Act. 15. We have considered the rival submissions. In view of these details available in the Paper Book filed by the assessee containing 103 pages, it is seen that details are made available as per which it is made clear that all these payments are made by account payee cheques and as per the certificate given in the Paper Book, all these documents were made available by the assessee before both AO and learned CIT(A) and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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