Unicons India (P) Ltd, New Delhi V. ITO, New Delhi

ITA 1321/DEL/2009

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0620 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 13-12-2010
• Assessment Year: 1995-1996
• Appeal Filed On: 08-04-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AMARENDRA KUMAR
• Assessee Lawyers: JAGJEET SINGH
• Keywords: Opportunity of being heard
• Section: 143(3); 80HHC; 131; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H DELHI BEFORE SHRI A.D. JAIN AND SHRI K.G.BANSAL ITA NO. 1321(DEL)/2009 ASSESSMENT YEAR: 1995-96 UNICONS INDIA (P) LTD., I NCOME-TAX OFFICER, C/O A.B.MITRA, VS. WARD 18(1), NEW DELHI. F-14, EAST OF KAILASH, NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJIV SAXENA, ADVOC ATE & SHRI JAGJEET SINGH, ADVOCATE RESPONDENT BY : SHRI AMARENDRA KUMAR, SR. DR ORDER PER K.G. BANSAL : AM THIS APPEAL EMANATES FROM THE ORDER OF THE COMMISSIONER OF INCOME- TAX (APPEALS)-XXI, NEW DELHI, DATED 29.12.200 8 IN APPEAL NO. 184/07- 08 PERTAINING TO ASSESSMENT YEAR 1995-96. THE CORRESPONDING ASSESSMENT ORDER WAS FRAMED BY THE INCOME-TAX OFFICER, WARD 18(1), NEW DELHI, ON 28.12.2007 UNDER THE PROVISION S OF SECTION 143(3) READ WITH SECTION 254 OF THE INCOME-TAX ACT, 1961. TH E ASSESSEE HAS TAKEN TWO GROUNDS IN THE APPEAL, THE SUM AND SUBSTANCE O F WHICH IS THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(APPEALS) ERRED IN-(I) CONFIRMING THE ADDITION OF ` 66.15 LAKHS MADE BY THE AO ON ITA NO. 1321(DEL)/2009 2 ACCOUNT OF UNEXPLAINED SUNDRY CREDITS; AND (II) NOT GRANTING ENHANCED DEDUCTION U/S 80HHC ON ACCOUNT OF INCREASE IN TO TAL INCOME BECAUSE OF THE AFORESAID ADDITION. 1.1 IT MAY BE MENTIONED HERE THAT THE APPEAL OF T HE ASSESSEE WAS DISMISSED FOR NON-PROSECUTION ON 19.10.2009. ON AN APPLICATION MADE BY THE ASSESSEE, THIS ORDER WAS RECALLED ON 13.8 .2010 WITH A VIEW TO DECIDE THE SAME ON MERITS. 2. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE SU BMITTED THAT THE MATTER HAS COME UP BEFORE THE TRIBUNAL FOR THE SECOND TIME. IN THE FIRST ORDER DATED 28.7.2006, THE MATTER WAS RESTORED TO T HE FILE OF THE AO WITH A DIRECTION TO RE-FRAME THE ASSESSMENT AS PER L AW AFTER ALLOWING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. A COPY OF THIS ORDER HAS BEEN PLACED IN THE PAPER BOOK ON PAGE NOS. E TO H. THE SUBMISSIONS OF THE LD. COUNSEL BEFORE THE TRIBUNAL AT THAT TIME W ERE THAT THE ASSESSEE WAS NOT ALLOWED TO CROSS-EXAMINE M/S UNIFOIL ENTERPR ISES AND WITHOUT DOING SO, THE AO CANNOT USE THE STATEMENT MADE BY ITS REPRESENTATIVE TO THE EFFECT THAT NO SALE WAS MADE TO THE ASSESSEE. IT WAS FURTHER SUBMITTED THAT THE BILLS OF PURCHASE HAD BEEN FILED AND NO EVIDENCE WAS BROUGHT ITA NO. 1321(DEL)/2009 3 ON RECORD BY THE AO TO PROVE NON-GENUINENESS OF THE BILLS. THE BILLS CONTAINED THE SALES-TAX NUMBER OF M/S UNIFOIL EN TERPRISES. IT WAS ALSO SUBMITTED THAT IF PURCHASES ARE TREATED AS BOG US, THEN THE ASSESSEE WOULD BE ENTITLED TO HIGHER DEDUCTION U/S 80HHC. AS MENTIONED EARLIER, AFTER CONSIDERING THE AFORESAID SUBMISSIONS, THE TRIBU NAL RESTORED THE MATTER TO THE FILE OF THE AO FOR RE-FRAMING THE ASSESSMENT. PARAGRAPH NO. 10 OF THAT ORDER IS REPRODUCED BELOW:- 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PER USED THE ORDERS OF BOTH THE LOWER AUTHORITIES AND MATERIA LS AVAILABLE ON RECORD. WE FIND THAT THE SALES SHOWN BY THE ASSESSEE HAS BEEN ACCEPTED AS GENUINE BY THE DEPARTMENT. WI THOUT PURCHASES THERE CANNOT BE SALE. THE ASSESSEES CONTENTION THAT AS THE SALES HAVE BEEN ACCEPTED AS GENUIN E IT CANNOT BE HELD THAT THERE WAS NO CORRESPONDING PURCHASE H AS FORCE IN IT. FURTHER, IT WAS OBSERVED THAT IN PURSUANCE TO N OTICE U/S 131 ISSUED BY THE ASSESSING OFFICER TO M/S UNIFOIL ENTERPRISES LTD. NONE APPEARED AND ONLY A LETTER WAS FILE D BY THEM MENTIONING THAT NO SALES WAS MADE BY THEM TO THE ASSESSEE. IN THE CIRCUMSTANCES, IF THE PURCHASE BILLS ARE WITH THE ASSESSEE IN SUPPORT OF THEIR CLAIM THEN MERELY T HIS LETTER OF M/S UNIFOIL ENTERPRISES LTD. CANNOT BE TAKEN AS SACROSANCT. WE FIND THAT NONE OF THE LOWER AUTHORITIES HAVE VERIFIED THE FACTS. IN THE CIRCUMSTANCES IN OUR CONSIDERED OP INION, THE ISSUE CANNOT BE DECIDED WITHOUT MAKING THE AF ORESAID VERIFICATION. HENCE, IN THE INTEREST OF JUSTICE WE SET ASIDE THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER A ND HE IS DIRECTED TO REFRAME THE ASSESSMENT AS PER LAW AFTER A LLOWING PROPERTY OPPORTUNITY OF HEARING TO THE ASSESSEE. 2.1 IT IS ALSO SUBMITTED THAT IN PURSUANCE OF THE AFORESAID ORDER, ASSESSMENT WAS FRAMED ON 28.12.2007, IN WHICH THE ADDITION OF THE ITA NO. 1321(DEL)/2009 4 AFORESAID AMOUNT WAS MADE AND THE TOTAL INCOME WAS DETERMINED AT ` 70,00,014/-. THE ASSESSEE HAD WRITTEN A LETTE R TO M/S UNIFOIL ENTERPRISES REQUESTING IT INTER-ALIA TO SUBMIT A CONFIRMED COPY OF THE ACCOUNT OF THE ASSESSEE IN ITS BOOKS. IT WAS REQUESTED T HAT SUCH A COPY MAY BE SENT TO THE ASSESSEE OR TO THE AO. HOWEVER, THE CRED ITOR DID NOT RESPOND TO THIS LETTER. THEREFORE, THE OUTSTANDING CREDIT OF ` 16,15,000/- WAS WRITTEN OFF IN THE BOOKS OF ACCOUNT IN THE YEAR ENDED ON 31.3.2007. IT WILL BE APPROPRIATE AT THIS PLACE TO REPRODUCE THE CONTEN TS OF THE LETTER WRITTEN BY THE ASSESSEE TO THE CREDITOR, WHICH HAS ALSO B EEN REPRODUCED BY THE AO ON PAGE 3 OF HIS ORDER:- WE HAVE PURCHASED 110 ROLLS IN CARTON (HOT STA MPING) FOIL FROM YOUR WORTH RS. 66,15,000/- AS PER TWO BILL S DATED 2 ND MAY, 1994 AND TWO DATED 11 TH MAY, 1994. THESE PURCHASES WERE MADE BY THE COMPANY THROUGH MR. RAVI HANDA A ND MR. SATISH HANDA, OUR DIRECTORS OF THE COMPANY. IT IS FOUND THAT THE PAYMENT OF RS. 66,15,000/- IS STILL OUTSTANDI NG IN OUR BOOKS OF ACCOUNT. IN THIS CONNECTION, AN ENQUIRY HAS BEEN MADE FROM YOU BY THE ASSESSING OFFICER I.E., I NCOME-TAX OFFICER, WARD 18(1), NEW DELHI THROUGH THE SUM MONS DATED 15.1.1998 DULY RECEIVED BY YOU ON 22.1. 1998. WE WERE INFORMED THAT YOU HAVE DENIED ABOUT SELLIN G THE GOODS TO US DURING THE PERIOD 1.4.1994 TO 31.3.1995 I.E., ASSESSMENT YEAR 1995-96. THE DENIAL WAS MADE BY YOU VIDE LETTER DATED 23 .1.1998 WHICH WAS DULY BEEN RECEIVED VIDE RECEIPT NO. 573 ON 2 ND FEB., 1998 IN THE INCOME-TAX OFFICE. IT IS SUB MITTED THAT YOUR DENIAL ABOUT THE SALE OF GOODS CLEARLY GIVE RISE TO THE CONCLUSION THAT YOU ARE NOT INTERESTED IN GETTIN G THE PAYMENT OF RS. 66,15,000/-. ITA NO. 1321(DEL)/2009 5 SINCE SALE WAS MADE THROUGH SALE BILLS LYING WITH US YOUR DENIAL OF SALE CANNOT BE ACCEPTED. OUR CASE IS PENDING BEFORE ITO, WARD 18(1), NEW DELHI WHICH IS REQUIRED TO BE FINALIZED IN ORDER TO CONFIRM ABOUT THE PURCHASES MADE FROM YOU. IT IS, THEREFORE, REQUESTED THAT KINDLY CONFIRM ABOUT THE SALE MADE BY YOU AS PER BILLS ISSUED TO US BY IMMED IATE POST AND SENT YOUR CONFIRMATION TO US, COPY OF WHICH M AY ALSO BE DIRECTLY SENT TO THE ASSESSING OFFICER MENTIONED ABOVE. IN CASE WE DO NOT RECEIVE ANY REPLY WE WILL PRE SUME THAT YOU ARE NOT INTERESTED IN GETTING THE PAYMENT OF RS. 66,15,000/- AND WE WILL ALSO DELETE THE LIABILITY STANDING I N OUR BOOKS OF ACCOUNTS. 2.2 THE INCOME TAX OFFICE AT MUMBAI MADE ENQUIR IES WITH M/S UNIFOIL ENTERPRISES AND STATEMENT OF SHRI PRAFFU L PARIKH, THE PROPRIETOR OF M/S UNIFOIL ENTERPRISES, WAS RECORDED. HE ALSO DENIED HAVING MADE THE SALE TO THE ASSESSEE. 2.3 ON THE BASIS OF THESE FACTS, THE AO CAME TO THE CONCLUSION THAT THE ASSESSEE DID NOT PURCHASE ANY MATERIAL FROM M/S UNIFOIL ENTERPRISES AND, THEREFORE, THE GOODS ACTUALLY CONSUMED BY IT W ERE PURCHASED FROM SOMEBODY ELSE, THE PAYMENT OF WHICH WAS MADE BY CA SH. ACCORDINGLY, THE ADDITION OF ` 66,15,000/- WAS MADE U/S 69 OF THE ACT. ITA NO. 1321(DEL)/2009 6 2.4 IT WAS ALSO SUBMITTED THAT THE MATTER WAS AGITATED BEFORE THE LD. CIT(A). IT WAS ARGUED THAT THE ASSESSEE HAS E XPORTED THE GOODS AND SALE PROCEEDS HAVE BEEN BROUGHT INTO INDIA BY WAY OF FOREIGN CURRENCY AND, THEREFORE, PURCHASE OF MATERIAL CANNOT BE DENIED. THE LD. CIT(A) DID NOT AGREE WITH THIS CONTENTION AND MENTIONED THAT THE ENQUIRIES CONDUCTED BY THE DRI SHOW THAT THE GOODS VALUED AT ` 81.00 LAKHS HAD THE ACTUAL VALUE OF ONLY ` 40,581/-, WHICH MAKES IT CLEAR THAT THE ASSES SEE IS ENGAGED IN OVER-INVOICING OF GOODS WITH A VIEW TO DEFRAUD THE REVENUE. M/S UNIFOIL ENTERPRISES HAS ALSO DENIED SALES HAVING BEEN MADE TO THE ASSESSEE. ACCORDINGLY, THE ADDITION HAS BEEN CON FIRMED. 2.5 IN SUPPORT OF THE ASSESSEES CASE THAT EITH ER DISALLOWANCE COULD NOT HAVE BEEN MADE OR ENHANCED DEDUCTION U/S 80H HC SHOULD HAVE BEEN ALLOWED, RELIANCE IS PLACED ON THE SUBMISSIONS MADE BEFORE THE AO, PLACED IN THE PAPER BOOK ON PAGE NOS. 11 AND 12. IN THIS LETTER IT HAD BEEN SUBMITTED THAT THE INFORMATION HAS BEEN RECEIVED BY THE AO DIRECTLY FROM M/S UNIFOIL ENTERPRISES AND, THEREFORE, IT IS T HE WITNESS OF THE REVENUE. IN SUCH A CIRCUMSTANCE OPPORTUNITY TO CROSS-EXAMINE THE WITNESS IS REQUIRED TO BE GIVEN TO THE ASSESSEE. THE ASSESSEE HAD WRI TTEN A LETTER TO M/S UNIFOIL ENTERPRISES, WHICH HAS NOT BEEN RESPONDED TO ALTHOUGH IT HAS BEEN ITA NO. 1321(DEL)/2009 7 POINTED OUT TO IT THAT IF THE REPLY IS NOT RE CEIVED WITHIN 10 DAYS, THE LIABILITY WILL BE DELETED FROM THE BOOKS OF TH E ASSESSEE. RELIANCE HAS ALSO BEEN PLACED ON SUBMISSIONS MADE BEFORE THE AO IN LETTER DATED 27.12.2007, IN WHICH IT IS INTER-ALIA MENTIONED TH AT THE INCOME TAX OFFICE AT MUMBAI HAS MADE ENQUIRIES ABOUT THE SPECIFIC BILLS ONLY. THE PROPER COURSE OF ACTION WOULD HAVE BEEN TO EXAMINE THE BOOKS OF ACCOUNT, STOCK AND PURCHASE OF STAMPING FOILS MADE BY M/S UN IFOIL ENTERPRISES, WHICH WERE SUPPLIED TO THE ASSESSEE. MERE DENIAL WOUL D HAVE NO ADVERSE EFFECT ON THE CASE OF THE ASSESSEE. IN VIEW OF THE AFO RESAID, IT IS AGITATED THAT THE ADDITIONS HAVE BEEN WRONGLY MADE. 2.6 IT WAS ALSO SUBMITTED THAT THE AMOUNT HAS B EEN WRITTEN OFF IN THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR 2007-0 8 AND SUCH CREDIT HAS BEEN INCLUDED IN THE INCOME IN THE ASSESSMENT ORD ER OF THAT YEAR. A COPY OF THE ASSESSMENT ORDER IS PLACED IN PAPER BOO K ON PAGE NOS. 45 AND 46. THE ORDER SHOWS THAT THE ASSESSEE HAD FILED NIL RETURN AND WAS ASSESSED AS SUCH U/S 143(3). THE ASSESSMENT ORDER SPECIFI CALLY SHOWS THAT LIABILITY OF ` 66,15,000/- IN RESPECT OF M/S UNIFOIL ENTERPRISES WAS WRITTEN OFF AND IN THIS CONNECTION IT IS MENTIONED THAT THE MATTER IS PENDING BEFORE THE ITA NO. 1321(DEL)/2009 8 TRIBUNAL IN PROCEEDINGS FOR ASSESSMENT YEAR 1995 -96. THUS, THE ASSESSMENT OF THE AMOUNT WAS MADE ON PROTECTIVE B ASIS. 3. IN REPLY, THE LD. DR REFERRED TO THE FINDINGS OF THE AO THAT M/S UNIFOIL ENTERPRISES HAS DENIED SALES TO THE ASSESSEE. THEREFORE, IT HAS BEEN HELD THAT THE ASSESSEE HAS MADE PURCHASES FRO M SOME OTHER PARTY BY PAYING THE AMOUNT IN CASH. AS THE POSSESSION OF THE AMOUNT SO PAID HAS NOT BEEN SATISFACTORILY EXPLAINED, THE ADDITIO N HAS BEEN MADE U/S 69 OF THE ACT. IT IS SUBMITTED THAT THE AMOUNT HAS BE EN WRITTEN OFF IN THE ASSESSMENT YEAR 2007-08 AFTER A LONG LAPSE OF TIM E. IT IS FURTHER SUBMITTED THAT THE ASSESSEE SHOULD HAVE SUBSTANTI ATED ITS PURCHASES AS THE AMOUNT WAS CLAIMED AS DEDUCTION IN COMPUTING TH E TOTAL INCOME. IT WAS REQUESTED THAT IF THERE IS ANY DEFICIENCY BY WA Y OF NOT GRANTING THE OPPORTUNITY OF CROSS-EXAMINATION, THE SAME MAY BE DONE NOW BY OBTAINING REMAND REPORT FROM THE AO. 4. IN THE REJOINDER, THE LD. DR SUBMITTED THAT 15 YEARS HAVE PASSED SINCE THE TRANSACTION TOOK PLACE. NO USEFUL PUR POSE WILL BE SERVED BY REMANDING THE MATTER TO THE AO. ITA NO. 1321(DEL)/2009 9 5. WE HAVE CONSIDERED THE FACTS OF THE CASE AND RIVAL SUBMISSIONS. THE FACTS ARE THAT THE ASSESSEE SHOWED PURCHA SE OF GOODS OF THE VALUE OF ` 66,15,000/- FROM M/S UNIFOIL ENTERPRISES. THE BILLS OF PURCHASES WERE FILED BEFORE THE AO. NO OTHER EVIDENCE REGARDI NG THE GENUINENESS OF THE TRANSACTION WAS FILED BEFORE HIM. IN THE COURS E OF ORIGINAL ASSESSMENT PROCEEDINGS, THE AO MADE ENQUIRIES BY SUMMONS P ROCEEDINGS AND IN REPLY DATED 23.1.1998, THE CREDITOR INFORMED T HAT IT HAS NOT MADE ANY SALE TO THE ASSESSEE. THEREFORE, THE AMOUNT WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. AS MENTIONED EARLIER, THE MATT ER WAS RESTORED TO THE FILE OF THE AO FOR DE-NOVO EXAMINATION AND ASSE SSMENT. IN PARTICULAR, IT WAS MENTIONED THAT THERE IS FORCE IN THE ARGUME NT OF THE LD. COUNSEL THAT THERE COULD BE NO SALE WITHOUT THE PURCHASE. THE ASSESSEE HAD PRODUCED THE PURCHASE BILLS AND, THEREFORE, A MERE LET TER FROM THE CREDITOR CANNOT BE TAKEN AS SACROSANCT. THUS, IT WAS HELD THAT THE FACTS REQUIRED FURTHER VERIFICATION. IN THE COURSE OF FRESH ASSESSMENT, THE AO GOT ENQUIRIES MADE AT MUMBAI WHERE THE CREDITOR IS LOCATED. STA TEMENT OF SHRI PRAFFUL PARIKH, THE PROPRIETOR, WAS RECORDED BY THE ASS ISTANT DIRECTOR OF INCOME- TAX (INVESTIGATION) ON OATH ON 26.12.2007. THE SA LE BILLS FURNISHED BY THE ASSESSEE WERE SHOWN TO HIM AND HE WAS ASKED TO CONFIRM WHETHER THE BILLS WERE ISSUED BY HIM AND WHETHER ANY SALE WAS MADE TO THE ASSESSEE ITA NO. 1321(DEL)/2009 10 IN THE PERIOD 1.4.1994 TO 31.3.1995. IT WAS D EPOSED THAT THE ANSWER HAD ALREADY BEEN GIVEN IN LETTER DATED 23.1.1998. IT WAS REITERATED AGAIN THAT NO SALE HAD BEEN MADE TO THE ASSESSEE. ON THE B ASIS OF THESE FACTS, THE AO CONCLUDED THAT THE ASSESSEE DID NOT MAKE ANY P URCHASE FROM M/S UNIFOIL ENTERPRISES BUT MADE PURCHASES FROM SOME OTHER PARTY, TO WHOM THE PAYMENT WAS MADE IN CASH. THEREFORE, THE ADDITION WAS MADE IN RESPECT OF UNEXPLAINED CASH U/S 69. THE LD. CIT(A) MODIFIED THE FINDINGS OF THE AO. IT WAS MENTIONED THAT DURING THE APPELLATE PROCEEDINGS ON BEING ASKED REGARDING THE SEIZUR E OF ONE OF THE CONSIGNMENTS BY THE DRI, VALUE OF WHICH WAS SHOWN AT ` 81,30,200/- BUT ITS ACTUAL VALUE WAS PUT AT ` 40,581/- ONLY. IN VIEW OF THIS FACT, IT WAS HELD THAT THE ASSESSEE IS INDULGING IN OVER- INVOICING OF GOODS. THEREFORE, THE ADDITION OF ` 66,15,000/- WAS UPHELD AND THE DEDUCTION WAS NOT ALLOWED U/S 80HHC. 5.1 THE CASE OF THE LD. COUNSEL IS THAT THE REVE NUE SHOULD HAVE ALLOWED THE ASSESSEE AN OPPORTUNITY TO CROSS-EXAMINE ITS WITNESS. THE ASSESSEE HAS PRODUCED THE BILLS AND DISCHARGED ITS ONUS. THE SALE BY WAY OF EXPORT LEADS TO INFERENCE THAT PURCHASES WERE MADE. ON NON- CONFIRMATION OF THE ACCOUNT, THE LIABILITY HAS BEEN WRITTEN OFF IN THE ITA NO. 1321(DEL)/2009 11 ASSESSMENT YEAR 2007-08. ON THE OTHER HAND, THE CASE OF THE LD. DR IS THAT THE ASSESSEE SHOULD HAVE SUBSTANTIATED THE PURC HASES ON ITS OWN IN VIEW OF THE STATEMENT OF THE PROPRIETOR OF M/S UNIFOI L ENTERPRISES. THE HUGE AMOUNT REMAINED UNPAID FOR A PERIOD OF ABOUT 12 YEARS, WHICH LEADS TO AN INESCAPABLE CONCLUSION THAT THE ENTRY IN THE BOOK S REGARDING PURCHASE WAS BOGUS. HE HAS ALSO SUGGESTED THAT IF THERE IS AN Y DEFICIENCY IN AUTHENTIFICATION OF EVIDENCE, IT MAY BE CURED BY REMAND REPORT. HOWEVER, THE LD. COUNSEL HAS OPPOSED SUCH A COURSE OF A CTION ON THE GROUND THAT THE MATTER IS OLD. 5.2 THE QUESTION WHETHER THE PURCHASES WERE MADE O R NOT IS ESSENTIALLY A QUESTION OF FACT. THE MOST SIGNIFICANT EVIDEN CE IN THIS REGARD IS THAT THE AMOUNT WHICH BECAME DUE IN FINANCIAL YEAR 1994 -95 WAS NOT PAID BY THE ASSESSEE AT ALL AND IT WAS WRITTEN OFF IN FINANCI AL YEAR 2006-07. THE REASON FOR NON-PAYMENT IS STATED TO BE THE SUPPLY OF INF ERIOR QUALITY GOODS, LEADING TO DISPUTES. NO EVIDENCE HAS BEEN FILED I N THIS REGARD. IF THE GOODS HAD ACTUALLY BEEN SUPPLIED, NO CREDITOR WOULD SILENTLY FOREGO HIS CLAIM EVEN IF IT HAD TO BE SETTLED FOR A LESS ER AMOUNT. ACCORDING TO US, THE NON-PAYMENT OF THE PURCHASE CONSIDERATION IS A STRONG CIRCUMSTANCE REGARDING NON-GENUINENESS OF THE TRANSACTION AND STANDS ON ITS OWN ITA NO. 1321(DEL)/2009 12 DE HORS ANY OTHER EVIDENCE. LACK OF EVIDENCE A BOUT DISPUTE FURTHER STRENGTHENS THE CONCLUSION. THUS, EVEN IF THE S TATEMENTS OF THE CREDITOR ARE IGNORED, SIGNIFICANT FACT OF NON-PAYMENT AND ABSENCE OF DISPUTE LEAD TO A JUSTIFIABLE CONCLUSION THAT NO PAYMENT WAS DUE AS NO SALE WAS MADE BY M/S UNIFOIL ENTERPRISES TO THE ASSESSEE . IN ANY CASE, THE LD. COUNSEL DOES NOT WANT US TO REMAND THE CASE FOR FURTHER ENQUIRY. THE FACTS ON RECORD, WHEN SEEN IN TOTALITY, GO AGAI NST THE CASE OF THE ASSESSEE. THEREFORE, WE AGREE WITH THE LD. CIT(A) WHEN H E HELD THAT NO PURCHASE WAS MADE FROM THE AFORESAID CREDITOR. THIS A UTOMATICALLY LEADS TO A CONCLUSION THAT EITHER THE PURCHASE WAS MADE FR OM SOME OTHER PARTY IN CASH OR THE SALE AMOUNT WAS INFLATED. THUS, THE AMOUNT RECEIVED BY WAY OF FOREIGN EXCHANGE WAS NOT IN RESPECT OF SALE OF GOODS. ACCORDINGLY, IT IS HELD THAT THE AO WAS RIGHT IN MAKING ADDITION OF ` 66.15 LAKHS U/S 69 AND DENYING ENHANCED DEDUCTION U/S 80HHC OF TH E ACT. 6 IN THE RESULT, THE APPEAL IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT ON 14 JANUARY, 2011. SD/- SD/- (A.D. JAIN) (K.G.BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE OF ORDER: 14TH JANUARY, 2011. SP SATIA ITA NO. 1321(DEL)/2009 13 COPY OF THE ORDER FORWARDED TO: UNICONS INDIA (P) LTD., NEW DELHI. ITO, WARD 18(1), NEW DELHI. CIT(A) CIT THE DR, ITAT, NEW DELHI. ASSISTANT REGISTRAR.