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TMI Blog2022 (6) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... customs authorities, names of the purchases parties not appearing in the documents related to the goods claimed to have been exported. [2]On the facts and circumstances of the case the CIT(A) has erred in not appreciating the fact that all the purchase parties were not available at the address given by the assessee and no evidence regarding purchase and copy of ledger accounts were furnished by the assessee. [3] On the facts and circumstances of the case, the Ld. CIT(A) has erred in not appreciating the fact that in respect of statement of Suresh Modi, proprietor of Balaji Enterprises who clearly stated that assessee forced to provide accommodation entries of purchase. [4] On the facts and circumstances of the case, the Ld. CIT(A) failed to appreciate the fact that submission of a certificate by the assessee from Joint Director of General Foreign Trade dated 07.01.2011 where export benefits were reflected, was not produced during the set aside assessment proceedings. [5] On the facts and circumstances of the case, the Ld. CIT(A) failed to appreciate the fact that the cheques issued in favour of purchase parties were credited to the account of third parties and several cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al before Ld. CIT(A), the action of Assessing Officer was upheld vide order dated 31.122008 in appeal CAS/II/317/07-08. And on further appeal before Tribunal, the matter was restored back to the file of Assessing Officer vide order dated 21.12.2011 in ITA No.945/AHD/2009. The Tribunal recorded that the assessee filed additional evidence, the addition evidence was accepted and the matter was restored to the file of Assessing Officer to decide the issue afresh after considering the evidences and after providing opportunity of hearing to the assessee. 4. The Assessing Officer passed fresh assessment order in pursuance of direction of Tribunal and restricted the addition of bogus purchases to the extent of 25% by following the order of Tribunal in the case of ACIT vs. Vijay Proteins Ltd. (1996) 55 TTJ (Ahd) 76 : 58 ITD 428 (Ahd). The Assessing Officer also held that though assessee could not explain the purchase at the same time export of the goods are not possible and that in absence of proper verification of purchases and non-availability of the parties, the disallowance was restricted to 25%. 5. On the addition of unsecured loan, the Assessing Officer recorded that assessee has sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and exported to different countries but the Assessing Officer has not taken cognizance of such facts. The certificate from the Joint Director of General Foreign Trade was produced against / export benefit including DEPB.Before the Assessing Officer in restoration proceedings, the assessee furnished complete evidence to substantiate the purchases. The assessee on the addition of purchases submitted that a goods purchased by assessee has been accepted by Assessing Officer yet in the course of original assessment, he disallowed the entire purchases. The assessee further furnished the chart of sale and purchase and submitted that total quantity of 9,20,336.45 kg. was sold/ export by the assessee. All purchases have been exported in most of the cases, the purchases & sales are directly linked. Total purchases were of Rs.6.72 crores and sales was of Rs.6.00 crores. The assessee incurred loss because of entire calculation was to earn the export benefit and eventuality the assessee earned some amount. However, some of the parties, from whom goods were purchased, had not paid necessary excise duty. Thus, assessee could not earn what he had anticipated and profit was shown at Rs.97,080/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. The Assessing Officer mentioned that Shri Suresh Kumar Modi stated about other lender. Such remarks are irrelevant particularly when they have not been summoned nor their replies were obtained. For Basuki Synthetics Pvt. Ltd., the assessee stated that they have made contra account confirmation, which was placed on record, which shows that initially they have paid Rs.10 lakhs to assessee on 11.10.2004. The assessee paid them Rs.10 lakh on 29.10.2004 and 31.10.2004 respectively and they again paid Rs.10 lakh this was squared up on 16.03.2005. Thus, effectively Basuki Synthetics Pvt. Ltd. paid only Rs.5.00 lakh and the addition is made of Rs.10 lakh instead of Rs.5 lakh. 10. The Ld. CIT(A) after considering the submission of assessee deleted the entire addition on account of alleged bogus purchases by holding that during assessment, the assessee furnished additional evidence which was admitted by Tribunal. The assessee claimed that in all exports, the prescribed form from the custom and Central Excise viz., ARE-1has been filed, which given complete details of goods transferred, their value, names & address detailed of excise registration number. The supplier also signed forms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Modi were recorded on 14.12.2007, wherein they denied of having taken or given loan to the assessee. In rest creditor / lender i.e., Basuki Synthetics Pvt. Ltd., Dulari Devi Saraf, Jai Prakash Modi & Kalawati Santhoria, the assessee provided the copy of statement of account of their name and address PAN, cheque number, copy of IT return. The Assessing Officer has not controverted such evidence filed by assessee. The assessee discharged his onus with regard to four persons. However, with regard to unsecured loan in case of Amit kumar Modi of Rs.1.34 lakhs and Shri Suresh Kumar Modi (HUF) of Rs.1,00,000/-. Both the persons stated that there is no transaction of loan with them. Thus, the addition of transaction with Amit Kumar Modi and Suresh Kumar Modi (HUF) of Rs.2,34,000/- was upheld and remaining addition was deleted. Aggrieved by the order of Ld. CIT(A), the Revenue has filed present appeal before Tribunal. 12. We have heard the submissions of Ld. Senior Departmental Representative (Sr-DR) for the Revenue and Ld. Authorized Representative (AR) for the assessee and perused the materials available on record. Ground No.1 to 5 relates to deleting on account of unverifiable bogus p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of August, 2006 when 80% of the city were inundated, books of assessee were lost and destroyed. However, books were audited prior to that date that auditor examined them and audit report was furnished and it was brought to the notice of Assessing Officer that assessee has made claim of loss with the parties concerned and he received Rs.15,000/- of loss of computer in which books were maintained the copy of such evidence was filed. The assessee could not bring the confirmation of the purchaser parties due to laps of time. The Assessing Officer relied upon the report of inspector, which was never supplied to the assessee. The assessee obtained the record from the office of custom and excise department and furnished the same before the Tribunal with the prayer to admit additional evidence. The prayer of assessee was accepted and the matter was restored back to the file of Assessing Officer to make de novo assessment after giving adequate opportunity to the assessee. The Ld. AR for the assessee further submits that Assessing Officer in his original assessment order wrongly stated that cheque issued by assessee were encashed by him but there is no such evidence about such encashment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, even the profit element embedded in such disputed purchases cannot be added because of the pacularity of this case. Thus, with this additional observation of Ld. CIT(A) we affirm the order of Ld. CIT(A). No contrary facts or law is brought to our notice to take other view. Thus, ground No.1 to 5 of Revenue's appeal is dismissed. 15. Ground No.6 &7 relate to deleting the addition of unsecured loan of Rs.17.66 lakhs. The Ld. Sr. DR for the Revenue supported the order of Assessing Officer and submits that Ld. CIT(A) failed to appreciate that all the confirmation letters were written by the same person and the signature was not genuineness and creditworthiness of the lenders were not proved on the basis of document provided. The Ld. CIT(A) despite accepting that unsecured loan from Suresh Kumar Modi (HUF) and Amit Kumar Modi was bogus and accepted remaining four creditors simply on the basis of documents furnished by assessee. 16. On the other hand, Ld. AR for the assessee supported the order of Ld. CIT(A). The Ld. AR of the assessee submits that assessee furnished name, address, PAN, the amount was received by cheques and repayment by cheque, confirmation and balance-shee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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