TMI Blog2020 (10) TMI 1144X X X X Extracts X X X X X X X X Extracts X X X X ..... idences before us in the shape of paper book mentioned above. Documentary evidences filed by the assessee for substantiating the claim of assessee and establishing the genuineness of purchase of packing material from the afore-mentioned two parties which has not been falsified by the AO by making any enquiry or producing any documentary evidences contrary to the evidences filed by the assessee. Even otherwise, Ld. DR has not filed any contrary evidences before us to falsify the claim of the assessee. - Decided in favour of assessee. - ITA NOS. 2032 And 2033/KOL/2017 And 107/KOL/2018 - - - Dated:- 7-10-2020 - Shri H.S. Sidhu, Judicial Member And Shri Prashant Maharishi, Accountant Member For the Assessee : Sh. Ved Jain, Advocate, Ms. Umang Luthra, Advocate For the Department : Sh. M. Baranwal, Sr. DR. ORDER PER H.S. SIDHU, JM: These 03 appeals filed by the Assessee are directed against the respective impugned orders dated 31.07.2017 passed by the Ld. CIT(A)-16, Kolkata and Order dated 22.12.2017 passed by the Ld. CIT(A)-3, Kolkata in relation to assessment years 2009-10, 2010-11 2011-12 respectively. Since the grounds raised in these appeals a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of bogus purchases on the basis of the report from Sale Tax Department and the Assessing Officer made detailed enquiry also and the parties were non-existent. The CIT(A) before passing the order ignored all the related documents, details submission, records and without ascertaining the facts just confirmed the Assessing Officer order and dismissed the appeal. 3. That any other grounds of appeal may kindly be allowed at the time of hearing. 4. The grounds raised in ITA No. 107/Kol/2018 (AY 2011-12) read as under:- 1. That the Joint Commissioner Of Income Tax is not justified by disallowing ₹ 28,87,110/- on account of packing materials on the ground that the claim of purchase of packing materials amounting to ₹ 28,87,110/- from the four parties are bogus. Against the order we preferred an appeal before the CIT Appeal-3 Kolkata. The CIT (Appeal) dismissed the appeal and confirmed the Assessing Officer Order on the ground that the issue has already decided against the appellant by my predecessor for the assessment year 2009-10. My predecessor has relied on the findings of the sale tax authorities and has confirmed the addition made by the AO. Further, on perusal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reply on 03.04.2014 requesting to treat the original return of income filed on 30.09.2009 vide Acknowledgment No. 97342861300909 as return in response to notice under section 148 and further requesting to provide copy of reasons for reopening the case under section 148. Accordingly, a letter was issued to the Assessee on 10.04.2014 intimating the reason for reopening the case under section 148. Thereafter, statutory notices were issued and duly served upon the assessee company. Subsequently, notice under section 142(1) along with questionnaire was issued to the Assessee on 12.12.2014 fixing the case for hearing on 29.12.2014. Sri S N Agarwal, Authorised Representative of the Assessee Company appeared on the different dates to explain the return. Assessee s AR filed its written explanation alongwith the party-wise details of packing material expenses for the instant vide letter dated 27.7.2015 and after considering all the documentary evidences filed by the Assessee, AO held that the revised alleged purchases from the Sales Tax Department amounting to ₹ 18,95,014/- from M/s Amit Trading Co. and ₹ 27,57,345/- from M/s DD Corporation totaling to ₹ 46,52,359 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the basis of reading of such material into judicial conclusions would be improper, more so when the assessee produced material. The least that the assessing officer ought to have cone was to enquire into the matter by, if necessary, invoking his powers under Section 131 summoning the share applicants or directors. No effort was made in that regard, in the absence of any such finding that the material disclosed was untrustworthy or lacked credibility the assessing officer merely concluded on the basis of enquiry report, which collected certain facts and the statements of Mr. Mahesh Garg that the income sought to be added fell within the description of Section 68. 7. Having regard to the entirety of facts and circumstances, the Court is satisfied that the finding of the Tribunal in this case accords with the ratio of the decision of the Supreme Court in Lovely Exports (supra). 8. The decision in this case is based on the peculiar facts which attract the ratio of Lovely Exports (supra; Where the assessee adduces evidence in support of the share application monies, it is open to the assessing officer to examine it and reject it on tenable grounds. In case he wishes to rely on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a case where the Assessing Officer has failed to conduct necessary inquiry, verification and deal with the matter in depth specially after the affidavit/confirmation along with the bank statements etc. were filed. In case, the Assessing Officer had conducted the said enquiries and investigation probably the challenge made by the revenue would be justified. In the absence of these inquiries and non verification of the details at the time of assessment proceedings, the factual findings recorded by the Assessing Officer were incomplete and sparse. The impugned order passed cannot be treated and regarded as perverse. The appeal is dismissed as no substantial question of law arises. 9. Following the various judicial pronouncements including above, we are of the opinion that the case of the assessee is squarely covered by the above judgment and therefore the Ld CIT(A) had rightiy deleted the addition. In view of the above, we do not find any reason to interfere in the order of Ld CIT(A). Similar view has been taken in the case of CIT vs Expo Globe Industrial Ltd IT A No. 1257/2011 dated 20-7-2012 where Nova Promotors has been distinguished. Relying upon the judgement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent-assessee from 5 companies are sham and bogus transactions . 3. We have examined the said contention and find that the assessee during the course of assessment proceedings has filed confirmation letters from the companies, their PAN number, copy of bank statements, affidavits and balance sheet. Thereafter the Assessing Officer had asked the assessee to produce the said Directors/ parties. Assessee expressed its inability to produce them. The Assessing Officer did not consequent thereto conduct any inquiry e - dosed the proceedings. This is a case where the ssessing Officer has faiiad to condLr necessary inquiry, verification and deal with the matter in depth specially after the affidav: confirmation along with the bank statements etc. were filed. In case the Assessing Officer had conducted the said enquiries and investigation probably the challenge made by the Revenue would be justified. In the absence of these inquiries and nonverification of the details at the time of assessment proceedings, the factual findings recorded by the Assessing Officer were incomplete and sparse. The impugned order passed cannot be treated and regarded as perverse. The appeal is dismissed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO did not make requisite investigation against the two sellers Recently, this Bench took a similar decision in the case of ITO vs. Vinod Kumar, Prop., Vinod Brothers, Sriganganagar ,in ITA No. 623/Jd/2005; Asst, yr. 1999-2000, dt. 17th Dec., 2005, on identical facts by holding that on the basis of third party's observation, no addition can be made. Therefore, by following the above decision and in view of our foregoing observations, we confirm the impugned deletion and dismiss ground No. (i) of the appeal. 5. Ground No. (ii) relates to addition of ₹ 55,632 made by the AO by holding that the assessee did not payany sales-tax to the Department or Mandi tax on 'Arhat' on the purchases made from the aSove two parties and thus made extra profit @5.6 per cent. The AO added this amount by multiplying 5.6 per cent with total purchase value of ₹ 9,93,442 In view of our above findings, where we have held that the purchases are genuine, no such addition can be made. Consequently, we dismiss this ground of appeal also . Reliance is also placed on the judgement of Hon ble Bombay High Court, in the case of Pr. CIT vs. Nikhil Arun Kumar Jhaveri. ITA No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llery. The purchase was corelated property with ihe sales. The A.O, has also not rejected the books of accounts u/s 145 of the Act to disapprove the Trading and P L Account or conducted any independent enquiry to establish his contentions that the said purchases were boqps as if there were no purchases at ail. The appellant established his claims by furnishing relevant Tax Invoice, Bank statements. Since the appellant has offered to taxation sales to M/s.Pransukhlal Sons Jewellers, he is entitled to deduction of consequent purchases from Shri Enterprise resulting in tax payment on the profit marginonly. Otherwise, the disallowance of purchases from Shree Enterprise of 46,01,040/65,05,236/and 52,09,593/will result in double taxation. There cannot be sales without corresponding purchases and both the things cannot be taxed simultaneously resulting in taxing of Turnover instead of income. Since, there is no evidence of the appellant receiving any money back in respect of the purchases, in question, the purchases could not be held to be bogus. The A.O. has made additions merely on the basis of observations made by the Sales Tax Department, for which he has not conducted; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as filed the copy of the aforesaid judgement. 7.1 But as regards to the merits of the case, in spite of the various opportunities given by the revenue authorities the assessee has not substantiated the claim. Therefore, the revenue authorities have rightly rejected the claim of the assessee and Ld. CIT(A) has rightly dismissed the appeal of the assessee. 8. We have heard both the parties and perused the relevant records, especially the orders passed by the revenue authorities and the synopsis filed by the Ld. Counsel for the assesseee as well as the case laws relied by both the parties along with the documentary evidences filed by the assessee in the shape of paper book containing pages 1-100 in which the assessee has attached the copy of acknowledgement of ITR alongwith its computation of income; copy of Audited Financials; copy of Tax Audit Report; copy of notice under section 148 dated 26.3.2014; copy of reasons recorded dated 10.4.2014; copy of objection submitted before the AO dated 19.5.2014 alongwith enclosures viz. (a) details of packaging material charges debited in the P L account, (b) detail of party wise packing charges paid during the year, (c) details of packing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year. Both these conditions were conditions precedent to be satisfied before the AO could have jurisdiction to issue notice under section 148 read with section 147(a). But under the substituted section 147 existence of only the first condition suffices. In other words, if the AO for whatever reason has reason to believe that income has escaped assessment it confers jurisdiction to reopen the assessment. It is however to be noted that both the conditions must be fulfilled if the case falls within the ambit of the provisio to section 147. The case at hand is covered by the main provision and not the proviso. 18. So long as the ingredients of section 147 are fulfilled, the AO is free to initiate proceeding under section 147 and failure to take steps under section 143(3) will not render the AO powerless to initiate reassessment proceedings even when intimation under section 143(1) had been issued. 19. Inevitable conclusion is that High Court has wrongly applied Adanis case (supra) which has no application to the case on the facts in view of the conceptual difference between section 143(1) and Section 143(3) of the Act. 20. Learned counsel for the respondent submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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