ITO 27(3)(5), NAVI MUMBAI V. YOGI DYE CHEM INDUSTRIES, MUMBAI

ITA 1228/MUM/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 2442 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2018
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 09-03-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Bogus purchase; Corroborative evidences; Accommodation entries
• Section: 69C; 142(1); 133(6); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , AM AND SHRI AMARJIT SINGH , JM I.T.A. NO S . 1228 TO 1230 /M/201 6 ASSESSMENT YEAR S : 2009 - 10, 2010 - 11 & 2011 - 12 ITO - 27(3)(5), MUMBAI 4 TH FLOOR, TOWER NO.6, ROOM NO.401A, VASHI RAILWAY STATION COMPLEX, VASHI, NAVI MUMBAI - 400703. VS. YOGI DYE CHEM INDUSTRIES C - 13, GRD FLOOR, SATYAM COMPLEX, M.G. ROAD MUMBAI - 400077. ./ ./ PAN/GIR NO. : AAAFY 2138 H ( APPELLANT ) .. ( RESPONDENT ) DATE OF HEARING : 17 . 07 .201 8 DATE OF PRONOUNCEMENT : 29 .08 .2018 O R D E R PER AMARJIT SINGH, JM: THE REVENUE HAS FILED THE ABOVE MENTIONED APPEA LS AGAINST THE DIFFERENT ORDER PASSED BY THE COMMIS S IONER OF INCOME TAX (APPEALS)25 , MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE ASSESSMENT YEAR S 2009 - 10, 2010 - 11 & 2011 - 12 . ITA NO.1228 /M/201 6 : - 2. THE REVENUE HAS FILED THE PRESENT A PPEAL AGAINST THE ORDER DATED 23.12 .201 5 PASSED BY THE COMMISS IONER OF INCOME TAX ASSESSEE BY: SHRI DEVENDRA JAIN DEPARTMENT BY: SHRI V. JUSTIN (DR) ITA. NO.1228 TO 1230 M/16 A.Y. 2009 - 10, 2010 - 1 1 &201 1 - 12 2 (APPEALS) - 2 5 MUMBAI, [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE ASSESSMENT YEARS 20 09 - 10 . 3 . THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: - ]) ON THE FADS AND THE CIRCUMSTANCES OF THE CASE THE LD CIT(A) ERRED IN DIRECTING TO DELETE THE ADDITION OF RS,2,97,42,9] 61 - U/S.69 C ON ACCOUNT OF PURCHASES MADE FROM M/S MILLER CHEMICALS PVT LTD BY HOLDING THAT THE AO HAD MADE THE ADDITION MERELY ON T HE BASIS OF INFORMATION RECEIVED FROM SALES TAX AUTHORITIES WITHOUT MAKING ANY ENQUIRY AND HAVING SUPPORTING EVIDENCES TO SUBSTANTIATE THAT THE TRANSACTION WA S NOT GENUINE. 2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN DIRECTING TO DELETE THE ADDITION OF RS.2,97,42,9L6/ - U/S 69C ON ACCOUNT OF M/S M ILLER CHEMICALS PVT LTD WITHOUT APPRECIATING THE FACT THAT I) LETT ER ISSUED U/S 133(6} AT T HE ADD RESS MENTIONED IN THE SALES BILL S PROVIDED BY THE ASSESSEE IN RESPECT OF PURCHASES MAD E IN THE PREVIOUS YEAR 2008 - 09 RELEVANT TO A.Y 2009 - 10 WAS RETURNED UN SERVED, II) SPOT ENQUIRIES CONDUCTED AT ADDRESS PROVIDED IN THE WEBSITE OF THE SALE TAX DEPARTMENT REVEALED THAT THE AFORESAID CONCERN WAS NON - EXISTENT, III NO EVIDENCE TO SU BSTANTI ATE THE TRANSPORTATION OF GOODS EVEN IN RESPECT OF PURCHASES OF RS, 19,35,81 11 - FROM M/S MILLER CHEMICALS PVT LTD AS APPEARING IN THE BEAKS OF ACCOUNTS WERE FURNISHED IV] THE ASSESSEE HAD FA IL ED TO PRODUCE ANY OF THE DIRECTORS FOR EXAMINATION AND THE SAFES TAX AUTHORITIES HAD REGISTERED A CASE IN RESPECT OF PROVIDING ACCOMMODATION ENTRIES TO THE ASSISTANT COMMISSIONER OF POLICE, ECONOMIC OFFENCE WING MUMBAI. 3) THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CIT[A) ON THE ABOVE GROUNDS BE REVERSED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 4] THE APPELLANT CRAVES LEAVES TO AMEND OR ALERT ANY GROUNDS OR ADD A NEW GROUND WHICH MAY BE NECESSARY. ITA. NO.1228 TO 1230 M/16 A.Y. 2009 - 10, 2010 - 1 1 &201 1 - 12 3 4 . THE BRIEF FACTS OF THE CASE ARE THAT THE NOTICE U/S 148 OF THE ACT, 1961 WAS ISSUED TO THE APPELLANT ON THE BAS IS OF THE INFORMATION RECEIVED FROM THE OFFICE OF THE DGIT(INV.) MUMBAI. THE INFORMATION WAS RECEIVED FROM THE SALES TAX DEPARTMENT THAT THE APPELLANT HAD PURCHASED THE GOODS FOR AN AMOUNT OF RS.2,97,42,916/ - FROM M/S.MILLER CHEMICAL PVT. LTD. IN THE RELEV ANT ASSESSMENT YEAR. THE APPELLANT VIDE LETTER DATED 07.01.2014 INFORMED TO AO THAT THE APPELLANT HAD PURCHASED ONLY FOR AN AMOUNT OF RS.19,35,812/ - FROM M/S.MILLER CHEMICAL PVT. LTD. INSTEAD OF AMOUNT DISCLOSED BY THE AO. THE ASSESSING OFFICER SOUGHT THE INFORMATION FROM THE SALES TAX DEPARTMENT SEEKING FOR DETAIL AND CLARIFICATION REGARDING THE TRANSACTION. THE REPLY OF THE SALES TAX OFFICE WAS NOT CLEAR . T HE SALES TAX DEPARTMENT ALSO INFORMED THAT THE STATEMENT OF OATH OF MR. RAJENDRA BHIMRAJKA OPERATOR OF THE COMPANY WAS RECORDED IN WHICH HE ADMITTED TO HAVING ISSUED SALES BILLS TO VARIOUS PARTIES AS PER THEIR REQUIREMENT. REFERENCE WAS ALSO MADE TO ANNEXURE J II OF THE AUDIT FORM 704 OF YOGI DYE CHEM INDUSTRIES WITH SALES TAX DEPARTMENT WHEREIN IN THE FIGURE WAS ONLY SHOWN OF RS.19,35,812/ - FOR THE ASSESSMENT YEAR WHICH ACCORDING TO THE AO WAS CONTRARY TO THE INFORMATION RECEIVED. NOTICE U/S 133(6) OF THE I.T. ACT, 1961 WAS ISSUED TO M/S.MILLER CHEMICAL PVT. LTD. BUT THE NOTICE RECEIVED U N - SERVED. THE APPELLANT ALSO EXPRESSED ITS INABILITY TO PRODUCE THE PARTY FOR VERIFICATION. THE APPELLANT FAILED TO PRODUCE THE LORRY RECEIPTS, OCTROL RECEIPTS TO PRODUCE THE GENUINENESS OF THE PURCHASES, THEREFORE, ITA. NO.1228 TO 1230 M/16 A.Y. 2009 - 10, 2010 - 1 1 &201 1 - 12 4 THE PURCHASE TO THE TUNE OF RS.2,97,42,9 16/ - WAS ADDED TO THE INCOME OF THE ASSESSE E U/S 69C OF THE ACT. THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO DELETED THE SAID ADDITION , THEREFORE, THE REVENUE HAS FILED THE PRESENT APPEAL BEFORE US. 5 . ALL THE ISSUES OF THE REVENUE ARE IN CONNECTION WITH THE DELETION OF THE ADDITION OF RS.2,97,42,916/ - U/S 69C OF THE ACT . IT IS ARGUED BY THE LD. REPRESENTATIVE OF THE REVENUE THAT THE CIT(A) HAS DELETED THE ADDITION WRONGLY AND ILLEGALLY, THEREFORE, THE FINDING OF THE CIT(A) IS LIABLE TO BE SET ASIDE AND THE ADDITION TO THE TUNE OF RS.2,97,42,916/ - IS LIABLE TO BE RAISED TO THE INCOME OF TH E ASSESSEE IN ACCORDANCE WITH LAW. HOWEVER, ON THE OTHER HAND, THE LD. REPRESENTATIVE OF THE ASSESSEE HAS REFUTED THE SAID CONTENTION. BEFORE GOING FURTHER WE DEEMED IT NECESSARY TO ADVERT THE FINDING OF THE CIT(A) ON RECORD: - 7, I HAVE CAREFULLY CONSID ERED THE SUBMISSIONS OF THE APPELLANT. THE ONLY BASIS FOR THE ADDITION OF THE AMOUNT OF RS. 2,97,42.916/ - WAS THE INFORMATION RECEIVED BY THE ASSESSING OFFICER FROM THE SALES TAX DEPARTMENT THROUGH THE D.C.LT(INV.) MUMBAI. THE APPELLANT INFORMED THE ASSESS ING OFFICER THAT HE HAD PURCHASED ONLY FOR AN AMOUNT OF RS, 19,35,8 12/ - FROM THE PARTY. THE ASSESSING OFFICER'S EFFORT TO OBTAIN MORE CLARIFICATION FROM THE SALES TAX DEPARTMENT WAS IN VAIN. THE ONLY DETAIL WHICH THE ASSESSING OFFICER OBTAINED FROM THE SALES TAX DEPARTMENT, AS PER THE ASSESSMENT ORDER, WAS THAT THERE WAS A STATEMENT OF MAIN OPERATOR OF M/S, MILLER CHEMICAL P.LTD., WHEREIN, HE TALKS OF ISSUING BILLS TO VARIOUS PARTIES AND THE COPY OF THE ANNEXURE J - IL OF AUDIT FORM 704 OF THE APPELLAN T, WHEREIN, THE AMOUNT OF RS. 19,35, 81 2/ - IS MENTIONED. THE ASSESSING OFFICER LATER ON TRIED TO CONTACT M/S. MILLER CHEMICAL P,LTD,, BUT, THERE WAS NO RESPONSE. AS POINTED OUT BY THE APPELLANT, THE ASSESSING OFFICER HAD NOT VERIFIED, WHETHER THE APPELLANT HAD ACTUALLY PURCHASED THE GOODS FOR THE FULL AMOUNT OF RS. 2,37, 42,916/ - AND HAVE THE ITA. NO.1228 TO 1230 M/16 A.Y. 2009 - 10, 2010 - 1 1 &201 1 - 12 5 PAYMENTS WERE EFFECTED, WHETHER THE GOODS HAVE BEEN RECEIVED, WHETHER APPELLANT HAD MAINTAINED STOCK RECORD IN THE BOOKS OF ACCOUNTS AND HOW THESE GOODS WERE DISPOSED OFF. IN THE ABSENCE OF ANY MEANINGFUL VERIFICATION, BOOKS CANNOT BE REJECTED CASUALLY. IT IS ALSO NOT SEEN WHETHER THE ASSESSING OFFICER TRIED TO CO - RELATE THE BOOKS MAINTAINED BY THE APPELLANT WITH THE BUSINESS WHICH IT WAS CARRYING ON, THEREFORE, THE INE VITABLE CONCLUSION IS THAT THE ADDITION HAS BEEN MADE BASED ONLY ON THE INFORMATION RECEIVED FROM THE SALES TAX DEPARTMENT. THERE IS NO OTHER SUPPORTING EVIDENCE. AS THERE IS NO OTHER BASIS, IT IS DIFFICULT TO APPROVE THE REJECTION OF THE BOOKS OF THE APPE LLANT, AND THEREFORE, THE ADDITION MADE BY THE ASSESSING OFFICER OF RS. 2,97,42,9167 - IS DELETED. 6 . ON APPRAI SAL OF THE ABOVE MENTIONED FINDING , WE NOTICED THAT THE INFORMATION WITH REGARD TO BOGUS PURCHASE FROM M/S.MILLER CHEMICAL PVT. LTD. WAS NOT RELATED TO THE ASSESSEE TO THE EXTENT OF RS.2,97,42,916/ - . AS PER THE RECORD , THE PURCHASE WAS FOUND TO THE EXTENT OF RS.19,35 ,812/ - . AS PER THE COPY OF ANNEXURE - J - II FORM 704 OF THE APPELLANT, THE PURCHASE WAS TO THE TUNE OF RS.19,35,812/ - . THE PURCHASE T O THE EXTENT OF RS.19,35,812/ - IS NOT DISPUTED WHEREAS THE REMAINING PURCHASE IS NOT PROVE D ON RECORD . T HE SAID PURCHASE TO THE TUNE OF RS.2,97,42,916/ - WAS NOT BELONGING TO THE ASSESSEE . ACCORDINGLY, THE PURCHASE TO THE EXTENT OF RS.19,35,812/ - IS BEING TREATED AS BOGUS. CONSIDERING THE DECISION OF THE GUJARAT HIGH COURT IN THE CASE OF SIMIT P. SHETH (2013) 356 ITR 451 (GUJ) & VIJAY PROTEINS LTD. VS. CIT (2015) 58 TAXMANN.COM 44 (GUJ) , THE PROFIT RATIO TO THE EXTENT OF 12.5% EMBEDDED IN THE BOGUS PURCHASE IS REQUIRED TO BE ADDED TO THE INCOME OF THE ASSESSEE. IN THE SAID CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ADDITION TO THE EXTENT OF 12.5% OF THE BOGUS PURCHASE I.E., OF RS.19,35,812/ - IS QUITE JUSTIFIABLE ITA. NO.1228 TO 1230 M/16 A.Y. 2009 - 10, 2010 - 1 1 &201 1 - 12 6 AND IS LIABLE TO BE ADDED TO THE INCOME OF THE ASSESSEE. IN THIS REGARD, WE ALSO FIND SUPPORT OF THE DECISION OF THE HONBLE ITAT IN THE ASSESSEES OWN CASE FOR THE A.Y.2009 - 10 IN ITA. NO. 2626/M/2017 IN WHICH THE ADDITION HAS BEEN RESTRICTED TO THE EXTENT OF 12.5% OF THE BOGUS PURCHASE. ACCORDINGL Y, WE SET ASIDE THE FINDING OF THE CIT(A) ON THIS ISSUE AND RESTRICTED THE ADDITION TO THE EXTENT OF 12.5% OF THE BOGUS PURCHASE OF RS.19,35,812/ - . ACCORDINGLY, THESE ISSUES ARE DECIDED IN FAVOUR OF THE REVENUE AGAINST THE ASSESSEE. ACCORDINGLY, THE APPE AL OF THE REVENUE IS HEREBY ALLOWED. I TA NO.1229 /M/201 6 : - 7 . THE REVENUE HAS FILED THE PRESENT A PPEAL AGAINST THE ORDER DATED 23.12.2015 PASSED BY THE COMMIS SIONER OF INCOME TAX (APPEALS) - 25 , MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVAN T TO THE ASSESSMENT YEAR 2010 - 11 . 8 . THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: - 1. ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE THE LD. CLT(A) ERRED IN DIRECTING TO DELETE THE ADDITION OF RS. S543645/ - U/S.69 C ON ACCOUNT OF PURCHASES MADE FROM M / S MILLER CHEMICALS PVT LTD BY HOLDING THAT THE AO HAD MADE THE ADDITION MERELY ON THE BASIS OF INFORMATION RECEIVED FROM SALES TAX AUTHORITIES WITHOUT MAKING ANY ENQUIRY AND HAVING SUPPORTING EVIDENCES TO SUBSTANTIATE THAT THE TRANSACTION WAS NOT GENUINE. 2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD, CIT(A) ERRED IN DIRECTING TO DELETE THE ADDITION OF RS,85,43,645/ - U/S 690 ON ACCOUNT OF M/S MILLER CHEMICALS PVT LTD WITHOUT APPRECIATING THE TACT THAT I] LETTER ISSUED U/S 133(6] AT THE ADDRESS MENT IONED IN THE SALES BILLS ITA. NO.1228 TO 1230 M/16 A.Y. 2009 - 10, 2010 - 1 1 &201 1 - 12 7 PROVIDED BY THE ASSESSEE IN RESPECT OF PURCHASES MADE IN THE PREVIOUS YEAR 2008 - 09 RELEVANT TO A.Y 2009 - TO WAS RETURNED UN SERVED, II] SPOT ENQUIRIES CONDUCTED AT ADDRESS PROVIDED IN THE WEBSITE OF THE SALE TAX DEPARTMENT REVEALE D THAT THE AFORESAID CONCERN WAS NON - EXISTENT, III] THE ASSESSEE HAD FAILED TO PRODUCE ANY OF THE DIRECTORS FOR EXAMINATION AND THE SALES TAX AUTHORITIES HAD REGISTERED A CASE IN RESPECT OF PROVIDING ACCOMMODATION ENTRIES TO THE ASSISTANT COMMISSIONER OF P OLICE, ECONOMIC OFFENCE WING MUMBAI. 3) THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CIT(A) ON THE ABOVE GROUNDS BE REVERSED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 4) THE APPELLANT CRAVES LEAVES TO AMEND OR ALERT ANY GROUNDS OR ADD A NEW GROUND WH ICH MAY BE NECESSARY. 9 . THE BRIEF FACTS OF THE CASE ARE THAT THE CASE OF THE ASSESSEE WAS REOPENED ON 28.03.2013 BY ISSUING OF NOTICE U/S 148 OF THE I.T. ACT ON THE BASIS OF INFORMATION RECEIVED BY THE DGIT(INV.) MUMBAI TO THE FACT THAT THE ASSESSEE WAS ONE OF THE BENEFICIARIES OF BOGUS PURCHASE AMOUNTING TO R S. 85,43,645/ - FROM M/S.MILLER CHEMICAL PVT. LTD. THE ASSESSEE IN PURSUANCE OF THE SAID NOTICE , FILED RETURN OF INCOME ON 30.09.2010 DECLARING TOTAL INCOME TO THE TUNE OF RS.80,178/ - . THE REASON RECOR DED PRIOR TO ISSUE OF NOTICE U/S 148 OF THE ACT WAS GIVEN TO THE ASSESSEE ON 28.03.2013. THEREAFTER THE STATUTORY NOTICE U/S 143(2) AND 142(1) OF THE ACT WERE ISSUED AND SERVED UPON THE ASSESSEE. NOTICE U/S 133(6) OF THE ACT WAS GIVEN TO M/S. MILLER CHEMIC AL PVT. LTD. BUT NO RESPONSE WAS RECEIVED. T HE ASSESSEE ALSO FAILED TO PRODUCE THE PARTY, THEREFORE, AN AMOUNT OF RS.85,43,645/ - WAS ADDED TO THE INCOME OF THE ASSESSEE. FEELING AGGRIEVED, THE ITA. NO.1228 TO 1230 M/16 A.Y. 2009 - 10, 2010 - 1 1 &201 1 - 12 8 ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO DELETED THE SAI D ADDITION, THEREFORE, THE REVENUE HAS FILED THE PRESENT APPEAL BEFORE US. 10 . WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. BEFORE GOING FURTHER, WE DEEMED IT NECESSARY TO ADVER T THE FINDING OF THE CI T(A) ON RECORD .: - 7, I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE APPELLANT. THE ONLY BASIS FOR THE ADDITION OF THE AMOUNT OF RS. 85,43,645 / - WAS THE INFORMATION RECEIVED BY THE ASSESSING OFFICER FROM THE SALES TAX DEPARTMENT THROUGH THE D.C.LT(INV.) MUMBAI. THE APPELLANT INFORMED THE ASSESSING OFFICER THAT HE HAD PURCHASED ANYTHING FROM THE PARTY FROM THE PARTY. THE ASSESSING OFFICER'S EFFORT TO OBTAIN MORE CLARIFICATION FROM THE SALES TAX DEPARTMENT WAS IN VAIN. THE ONLY DETA IL WHICH THE ASSESSING OFFICER OBTAINED FROM THE SALES TAX DEPARTMENT, AS PER THE ASSESSMENT ORDER, WAS THAT THERE WAS A STATEMENT OF MAIN OPERATOR OF M/S, MILLER CHEMICAL P. LTD., WHEREIN, HE TALKS OF ISSUING BILLS TO VARIOUS PARTIES AND THE COPY OF THE A NNEXURE J - IL OF AUDIT FORM 704 OF THE APPELLANT, THE ASSESSING OFFICER LATER ON TRIED TO CONTACT M/S. MILLER CHEMICAL P, LTD, BUT, THERE WAS NO RESPONSE. AS POINTED OUT BY THE APPELLANT, THE ASSESSING OFFICER HAD NOT VERIFIED, AND HAVE THE PAYMENTS WERE EFFECTED, WHETHER THE GOODS HAVE BEEN RECEIVED, WHETHER APPELLANT HAD MAINTAINED STOCK RECORD IN THE BOOKS OF ACCOUNTS AND HOW THESE GOODS WERE DISPOSED OFF. IN THE ABSENCE OF ANY MEANINGFUL VERIFICATION, BOOKS CANNOT BE REJECTED CASUALLY. IT IS ALSO NOT S EEN WHETHER THE ASSESSING OFFICER TRIED TO CO - RELATE THE BOOKS MAINTAINED BY THE APPELLANT WITH THE BUSINESS WHICH IT WAS CARRYING ON, THEREFORE, THE INEVITABLE CONCLUSION IS THAT THE ADDITION HAS BEEN MADE BASED ONLY ON THE INFORMATION RECEIVED FROM THE S ALES TAX DEPARTMENT. THERE IS NO OTHER SUPPORTING EVIDENCE. AS THERE IS NO OTHER BASIS, IT IS DIFFICULT TO APPROVE THE REJECTION OF THE BOOKS OF THE APPELLANT, AND THEREFORE, THE ADDITION MADE BY THE ASSES SING OFFICER OF RS.85,43,645/ - IS DELETED. 11 . ON APPRAISAL OF THE ABOVE MENTIONED FINDING, WE NOTICED THAT THE AO RAISED THE ADDITION IN VIEW OF THE STATEMENT RECORDED BY THE SALES TAX DEPARTMENT OF THE INCHARGE OF M/S.MILLER CHEMICAL PVT. ITA. NO.1228 TO 1230 M/16 A.Y. 2009 - 10, 2010 - 1 1 &201 1 - 12 9 LTD. ON APPRAISAL OF THE ORDER OF THE ASSESSING OFFICER DATED 11.03.2014 , WE NOTICED THAT THE ANNEXURE J - II OF THE AUDIT FORM 704 OF YOGI DYE CHEM INDUSTRIES SHOWN THE PURCHASE TO THE TUN E OF RS.NIL FOR THE A.Y.2010 - 11 . T HE INFORMATION WAS CONTRARY TO THE SAID RECORD . NO BILL INVOICES ETC., ARE ON RECORD. THE ASSES SING OFFICER RAISED THE ADDITION ON ACCOUNT OF NON - SERVING OF NOTICE U/S 133(6) OF THE I.T. ACT, 1961 AND NON - PRODUCING THE CONCERNED PERSON BEFORE HIM. ANYHOW, THERE IS NOTHING ON RECORD TO WHICH IT CAN BE ASSUMED THAT THE ASSESSEE PURCHASE D THE MATERIAL FROM M/S.MILLER CHEMICAL PVT. LTD. TO THE TUNE OF RS.85,43,645/ - . SINCE THERE IS NOTHING ON RECORD TO WHICH IT CAN BE ASSUMED THAT THE ASSESSEE PURCHASE D THE MATERIAL FROM M/S.MILLER CHEMICAL PVT. LTD. THEREFORE, WE ARE OF THE VIEW THAT THE ORAL STATE MENT OF THE INCHARGE OF M/S. MILLER CHEMICAL PVT. LTD. IS NOT SUFFICIENT TO RAISE THE ADDITION. THERE IS NO CORROBORATION OF THE STATEMENT OF INCHARGE OF M/S.MILLER CHEMICAL PVT. LTD. ACCORDINGLY, THE CIT(A) HAS PASSED THE ORDER JUDICIOUSLY AND CORRECTLY WHICH IS NOT LIABLE TO BE INTERFERE WITH AT THIS APPELLATE STAGE. ACCORDINGLY, THESE ISSUES ARE DECIDED IN FAVOUR OF THE REVENUE AGAINST THE ASSESSEE. IN RESULT THE APPEAL OF THE REVENUE IS HEREBY ORDERED TO BE DISMISSED. ITA NO.1230/M/2016: - ITA. NO.1228 TO 1230 M/16 A.Y. 2009 - 10, 2010 - 1 1 &201 1 - 12 10 12 . THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 23.12.2015 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 25, MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE ASSESSMENT YEAR 2011 - 12 . 13 . THE REVENUE HAS RAISED THE FOL LOWING GROUNDS: - 1] ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE THE LEI CIT[A] ERRED IN DIRECTING TO DELETE THE ADDITION OF RS. 19S85735/ - U/S,69 C ON ACCOUNT OF PURCHASES MADE FROM M/S MILLER CHEMICALS PVL LTD BY HOLDING THAT THE AO HAD MADE THE A DDITION MERELY ON THE BASIS OF INFORMATION RECEIVED FROM SAFES TAX AUTHORITIES WITHOUT MAKING ANY ENQUIRY AND HAVING SUPPORTING EVIDENCES TO SUBSTANTIATE THAT THE TRANSACTION WAS NOT GENUINE. 2 ON THE FADS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ER RED IN DIRECTING TO DELETE THE ADDITION OF RS.19885735/ - U/S 69C ON ACCOUNT OF M/S MILLER CHEMICALS PVT LID WITHOUT APPRECIATING THE FACT THAT I) LETTER ISSUED U/S 133(6) AT THE ADDRESS MENTIONED IN THE SALES BILLS PROVIDED BY THE ASSESSES IN RESPECT OF PURCHASES MADE IN FHE PREVIOUS YEAR 2008 - 09 RELEVANT FO A,Y 2009 - 10 WAS RETURNED UN SERVED, II] SPOT ENQUIRIES CONDUCTED AL ADDRESS PROVIDED IN THE WEBSITE OF THE SOLETAX DEPARTMENT REVEALED THAT THE AFORESAID CONCERN WAS NON - EXISTENT III) THE ASSESSEE HAD FAIFED TO PRODUCE ANY OF THE DIRECTORS FOR EXAMINATION AND THE SOLES TAX AUTHORITIES HAD REGISTERED A CASE IN RESPECT OF PROVIDING ACCOMMODATION ENTRIES TO THE ASSISTANT COMMISSIONER OF POLICE, ECONOMIC OFFENCE WING MUMBAI. 3 THE APPELLANT PRAYS THAT THE ORDER OF THE LD, CIT(A) ON THE ABOVE GROUNDS BE REVERSED AND THAT OF THE ASSESSING OFFICE R BE RESTORED. 4) THE APPELLANT CRAVES LEAVES TO AMEND OR ALERT ANY GROUNDS OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 14 . THE BRIEF FACTS OF THE CASE ARE THAT THE CASE OF THE ASSESSEE WAS REOPENED ON 28.03.2013 BY ISSUING OF NOTICE U/S 148 OF THE I.T. ACT ON ITA. NO.1228 TO 1230 M/16 A.Y. 2009 - 10, 2010 - 1 1 &201 1 - 12 11 THE BASIS OF INFORMATION RECEIVED BY THE DGIT(INV.) MUMBAI TO THE FACT THAT THE ASSESSEE WAS ONE OF THE BENEFICIARIES OF BOGUS PURCHASE AMOUNTING TO RS.1,98,85,735/ - FROM M/S.MILLER CHEMICAL PVT. LTD. THE ASSESSEE IN PURSUANCE OF THE SAID NOTICE FILED RETURN OF INCOME ON 30.09.2010 DECLARING TOTAL INCOME TO THE TUNE OF RS.1,06,116/ - . THE REASON RECORDED PRIOR TO ISSUE OF NOTICE U/S 148 OF THE ACT WAS GIVEN TO THE ASSESSEE O N 28.03.2013. THEREAFTER THE STATUTORY NOTICE U/S 143(2) AND 142(1) OF THE ACT WERE ISSUED AND SERVED UPON THE ASSESSEE. NOTICE U/S 133(6) OF THE ACT WAS GIVEN TO M/S. MILLER CHEMICAL PVT. LTD. BUT NO RESPONSE . T HE ASSESSEE ALSO FAILED TO PRODUCE THE PART Y, THEREFORE, AN AMOUNT OF RS.1,98,85,735/ - WAS ADDED TO THE INCOME OF THE ASSESSEE. FEELING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) WHO DELETED THE SAID ADDITION, THEREFORE, THE REVENUE HAS FILED THE PRESENT APPEAL BEFORE US. 15 . WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. BEFORE GOING FURTHER, WE DEEMED IT NECESSARY TO ADVERT THE FINDING OF THE CIT(A) ON RECORD.: - 7, I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE APPELLANT. THE ONLY BASIS FOR THE ADDITION OF THE AMOUNT OF RS. 1,98,85,735 / - WAS THE INFORMATION RECEIVED BY THE ASSESSING OFFICER FROM THE SALES TAX DEPARTMENT THROUGH THE D.C.LT(INV.) MUMBAI. THE APPELLANT INFORMED THE ASSESSING OFFICER THAT HE HAD PURCHASED ANYTHING FROM THE PARTY FROM THE PARTY. THE ASSESSING OFFICER'S EFFORT TO OBTAIN MORE CLARIFICATION FROM THE SALES TAX DEPARTMENT WAS IN VAIN. THE ONLY DETAIL WHICH THE ASSESSING OFFICER OBTAINED FROM THE SALES TAX DEPARTMENT, AS PER THE ASSESSMENT ORDER, WAS THAT THERE WAS A STATEMENT OF MAIN OPERATOR OF ITA. NO.1228 TO 1230 M/16 A.Y. 2009 - 10, 2010 - 1 1 &201 1 - 12 12 M/S, MILLER CHEMICAL P. LTD., WHEREIN, HE TALKS OF ISSUING BILLS TO VARIOUS PARTIES AND THE COPY OF THE ANNEXURE J - IL OF AUDIT FORM 704 OF THE APPELLANT, THE ASSESSING OFFICER LATER ON TRIED TO CONTACT M/S. MILLER CHEMICAL P, LTD, BUT, THERE WAS NO RESPONSE. AS POINTED OUT BY THE APPELLANT, THE ASSESSING OFFICER HAD NOT VERIFIED, AND HAVE THE PAYMENTS WERE EFFECTED, WHETHER THE GOODS HAVE BEEN RECEIVED, WHETHER APPELLANT HAD MAINTAINED STOCK RECO RD IN THE BOOKS OF ACCOUNTS AND HOW THESE GOODS WERE DISPOSED OFF. IN THE ABSENCE OF ANY MEANINGFUL VERIFICATION, BOOKS CANNOT BE REJECTED CASUALLY. IT IS ALSO NOT SEEN WHETHER THE ASSESSING OFFICER TRIED TO CO - RELATE THE BOOKS MAINTAINED BY THE APPELLANT WITH THE BUSINESS WHICH IT WAS CARRYING ON, THEREFORE, THE INEVITABLE CONCLUSION IS THAT THE ADDITION HAS BEEN MADE BASED ONLY ON THE INFORMATION RECEIVED FROM THE SALES TAX DEPARTMENT. THERE IS NO OTHER SUPPORTING EVIDENCE. AS THERE IS NO OTHER BASIS, IT IS DIFFICULT TO APPROVE THE REJECTION OF THE BOOKS OF THE APPELLANT, AND THEREFORE, THE ADDITION MADE BY THE ASSES SING OFFICER OF RS.1,98,85,735 / - IS DELETED. 16 . ON APPRAISAL OF THE ABOVE MENTIONED FINDING, WE NOTICED THAT THE AO RAISED THE ADDITION IN VIEW OF THE STATEMENT RECORDED BY THE SALES TAX DEPARTMENT OF THE INCHARGE OF M/S.MILLER CHEMICAL PVT. LTD. ON APPRAISAL OF THE ORDER OF THE ASSESSING OFFICER DATED 11.03.2014 , WE NOTICED THAT THE ANNEXURE J - II OF THE AUDIT FORM 704 O F YOGI DYE CHEM INDUSTRIES SHOWED THE PURCHASE TO THE TUNE OF RS.NIL FOR THE A.Y.2010 - 11 . T HE INFORMATION WAS CONTRARY TO THE SAID RECORD BEING NO BILL INVOICES ETC., ARE ON RECORD. THE ASSESSING OFFICER RAISED THE ADDITION ON ACCOUNT OF NON - SERVING OF NOTICE U/S 133(6) OF THE I.T. ACT, 1961 AND NON - PRODUCING THE CONCERNED BEFORE HIM. ANYHOW, THERE IS NOTHING ON RECORD TO WHICH IT CAN BE ASSUMED THAT THE ASSESSEE PURCHASE D THE MATERIAL FR OM M/S.MILLER CHEMICAL PVT. LTD. TO THE TUNE OF RS.1,98,85,735 / - . SINCE THERE IS NOTHING ON RECORD TO WHICH IT CAN BE ASSUMED THAT THE ASSESSEE PURCHASE D THE MATERIAL FROM M/S.MILLER CHEMICAL PVT. LTD. THEREFORE, WE ARE OF THE ITA. NO.1228 TO 1230 M/16 A.Y. 2009 - 10, 2010 - 1 1 &201 1 - 12 13 VIEW THAT THE ORAL STATEMENT OF THE INCHARGE OF M/S.MILLER CHEMICAL PVT. LTD. IS NOT SUFFICIENT TO RAISE THE ADDITION . ACCORDINGLY, THE CIT(A) HAS PASSED THE ORDER JUDICIOUSLY AND CORRECTLY WHICH IS NOT LIABLE TO BE INTERFERE WITH AT THIS APPELLATE STAGE. ACCORDINGLY, THESE ISSUES AR E DECIDED IN FAVOUR OF THE REVENUE AGAINST THE ASSESSEE. 17 . IN THE RESULT , ALL THE APPEALS FILED BY THE REVENUE ARE HEREBY ORDERED TO BE PARTLY ALLOWED . ORDER P RONOUNCED IN THE OPEN COURT ON . 29.08. 2 018 . SD/ - SD/ - ( SHAMIM YAHYA ) (AMARJIT SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 29.08 . 2018 . VIJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI