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TMI Blog2015 (1) TMI 1506X X X X Extracts X X X X X X X X Extracts X X X X ..... es of Rs. 9,64,605/- made from M/s Bhiwani Enterprises and Rs. 9,00,000/- made from M/s Shivm Trading Co. as fictitious without disputing the quantitative details of the rice exported and other documentary evidences. 2. That the Ld. CIT(A) erred in treating the payments made to third party on behalf of the suppliers as hypothetical. 3. That the Ld. CIT(A) erred in sustaining the addition of Rs. 40,000/- and Rs. 60,000/- received from Sri Kishan Lohia and Smt. Sushila Goyal aggregating to Rs. 1,00,000/- as not genuine. 4. That the Ld. CIT(A) erred in not giving cognizance to the fact that both the donor are assessed to income tax, the loans were received through account payee cheques, one of the loan creditor is a well known person and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat all the payments were made in the FY 2000-01 against the purchases made during the financial year. There is no scope of any doubt on the purchases made from them as all the goods purchased were exported. On examination of the submission of the assessee, the AO observed that the postal remark casts very serious doubt about the existence of the party. Against such a finding, the assessee could not offer any plausible explanation to prove the authenticity of his transactions with them. Therefore, he concluded that the amount of purchases shown against those two parties, namely M/s Bhawani Enterprises & Shivam Trading Company were false and fabricated. The assessee had shown purchases of Rs.9,64,605/- from M/s Bhawani Enterprise and Rs.9,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly shown that the payments were made through DD. In support, bank statements were also filed. 7. It was explained to the AO that the entire quantity of export and its value was subject to the control of RBI as his banker had to submit copy of the GR forms to RBI against all corresponding exports. 5. Apart from the above, Ld. Counsel for the assessee further submitted before the Ld. CIT(A) that Assessing Officer did not dispute the opening and closing stock of rice and the quantitative details. That the AO did not point out any defect in the quantity of export. That in the process of export of goods shipping bills are prepared which is verified by the Custom Authority. That invoice are also verified by them. That assessee had made th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bank charges and simultaneously, the delay of 2/3 days requires in banking channels. This was the common practice up to last 5/6 years. The assessee never claimed that the drafts were purchased in the name of the suppliers but it was stated that the payment were made by demand drafts. There was nothing wrong, if the payments were made to some other persons on account of the supplier. The AR further contended that to arrive at a conclusion, the entire evidence and materials are to b considered. The AO came to the conclusion on the basis of only one fact. He failed to bring any record the purpose of making the payments to Pawan Traders and Govind Nagar Sugar Ltd. That there was no evidence that payments made to these two parties were received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Custom Authority. Hence, we agree with the assessee that when the export of commodity is under control of Customs and Reserve Bank of India and export is supported by the evidence, a corresponding purchase cannot be disallowed. Furthermore, when the payments have been made to other party on instruction of suppliers, adverse inference also cannot be drawn because it is a custom and practice in the trade. Assessee has been following this practice for the past 5-6 years. 9. Thus, we find that on the facts and circumstances of the case, assessee's purchases cannot be disallowed. In this regard, we place reliance upon the following case law that this Tribunal in case of Sagar Bose v. ITO 56 ITD 561 (Kol) held that "the assessee has furnishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence, it could not be held that merely because a person was not found in the address after four years, the person was non-existent. The assessee had discharged its primary onus and established the identities of the said two commission agents and no evidence had been brought on record by the Revenue to rebut the case of the assessee." 10. In the background of the aforesaid discussion and precedent we hold that assessee has exported the purchases made and the exports have not been disputed. The purchase bills also contained the stamped by Sales Tax Check posts. The Revenue is not disputing the quantitative details of opening and closing stock, purchases and sales payments have been made through bank. Hence, merely because notice came bac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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