TMI Blog2021 (9) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... nner - As the order was passed by the CIT(A), in stero type and criptic manner, after ignoring the important admitted facts regarding the issuing of notices under section 133(6) of the Act, admissions of assessee of paying the Sales tax on behalf of Asian Tube Trading, registration of FIR, etc therefore In our considered opinion, the matter is required to be remanded back to the file of CIT(A) to decide the grounds raised by the assessee, a fresh following law. We set aside the order passed by the Commissioner and remand the matter to CIT (A). CIT(A) is directed to decide the Novo all the grounds raised by the assessee in the memo of appeal filled before him, after following the principle of natural justice and affording the opportunity of hearing to the assessee and to AO. As we are remanding back the entire matter to the CIT(A) file, we deem it appropriate not to adjudicate the other grounds raised by the revenue and assessee. - ITA Nos. 589/Asr/2014 & C.O. 52/Asr/2016 - - - Dated:- 24-8-2021 - Laliet Kumar, Member (J) And Dr. Mitha Lal Meena, Member (A) For the Appellant : Charan Das, DR For the Respondents : Tarun Badal, Adv. ORDER Per Laliet Kumar, JM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods is called gross weight). Gross weight on the truck depends on the quantity of goods loaded on the truck and it can even be more than rated capacity of truck as truck may be over loaded and similarly it can be less than rated gross weight if truck is under loaded. The AO has not carried out any inquiry by issuing summons or 133(6) notices to these weigh bridge companies and has simply stated that these are fabricated based on his presumptions. It was explained by the assessee counsel that M/s. Asian Tube Trading, has not deposited sales tax on sales made by it to the assessee and several other parties to the tune of crores of rupees and when said party was caught by Sales Tax Authorities, it has stated that it has provided only accommodation entries to shrug off any claim of sales tax from it. As providing accommodation entry does not come under purview of Sales Tax Authorities. As assessee has paid VAT on his sales and has claimed credit of VAT payment included in his purchases, the Sales Tax Authorities have forced for payment of this remaining sales tax which was not paid by the M/s. Asian Tube Trading, Mumbai. It can be seen from all the trading invoices issued by M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortunity to the assessee to cross examine the above party. Octroi payment will be applicable only in those cases where goods are coming from outside Mumbai limit and if goods are purchased locally then there will be no octroi payment. Similarly, weighment slips will be available if purchase party insists on reweighment of the goods to verify weight of the product, in case it is not convinced with the weight mentioned in the sales invoice or if weight has not been verified at the time of loading of purchase material by buyer party. Weighment slips are not necessary The AO has acted merely on allegation information of bogus purchases from above party but has not proved with any evidence, such as by cross examining M/s. Asian Tube Trading, Mumbai or investigating its bank account to find out cash re-payment trail of cheque payments etc. The AO has not even issued 133(6) notice as issued in other cases or in earlier year of this assessee itself to verify genuineness of the transactions. The AO has not provided any opportunity to the assessee to cross examine the above party regarding its allegation and further accepted vital evidences of purchase like corresponding sales/pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also under scrutiny for the same issue of bogus purchase, that they used to provide only false sales invoice. This is vital piece of information which cannot be ignored. This factor explains why this M/s. Asian Tube Trading had left its business premise. Had it been doing genuine business then it wouldn't have left its business premise. Further, the assessee in his reply dated 21.01.2014 himself came forward on the issue of bogus purchase which is reproduced below: In this case two party of purchase M/s. Asian Tube Trading Company = 12330363 (Inclusive of VAT) from which total purchases made during the year, has retaliated with Mumbai sales-tax department to grab crores of rupees in sales tax. We have genuinely purchased the material from them at Mumbai branch made the payment by cheque and issued purchase orders too. All the payments to the above party were made through account payee cheques only. In few cases copy of GR, Weighment slip, Octroi slip etc. is enclosed. The material purchased from M/s. Asian Tube Trading of Company was sold to different parties from which the payment is also received through account payee cheques only. There are many other evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceipt of the goods from the said Asian Tube trading and therefore the entire amount reflected in the bogus bills are required to be added to the income of the assessee. 4. On the other hand, the Ld. AR for the assessee had submitted that the due verifications were made by the CIT(A), therefore order passed by the CIT(A) is in accordance with law. The Ld AR, submitted, CIT(A) while passing the impugned order had himself verified from the stock register about the actual receipt of goods. Further it was submitted that once the assessing officer had admitted the sales of the assessee, then it is not open for the assessing officer to challenge the purchase made by the assessee. It was further submitted that the GP rate of 25% had wrongly been applied by Cit(A), without any basis, as no defects were pointed in the Books of account of the assessee, therefore CO of the assessee is required to be restored By holding GP at 18.14% 5. We have considered the rival contention of the parties and perused the material available on record, including the judgments cited at the bar during hearing by both parties. In the present case the CIT(A) has deleted the additions made by the assessing off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of hearing to the assessee and to AO. Further we issue following directions to the CIT(A):- a. To issue notices to Asian Trading Tube Mumbai or to any other person, for deciding issues raised by the assessee i.e. whether the invoices raised by Asian Trading Tube were fictitious or not. b. To record the categorical finding of facts, after analyzing the evidence on record or any other evidence, which may be filed by the assessee, whether the assessee had received the goods from Asian Trading Tube. c. To consider the replies filed by the assessee before the assessing officer and FIR registered by the assessee against the said company with the Police and investigation if any carried out by the Police on the said FIR, of the assessee. d. To issue summon and examine the records from the sale tax department, Mumbai in the case of the Asian Trading Tube and its sister concern. e. Grant opportunity to the assessee, for filing any other documents/evidence, which the assessee deem appropriate and necessary for adjudication of the lis, and sought a report from the AO on that, if the Assessee fills any such document. 8. As we are remanding back the entire matter t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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