DCIT, Central Circle 1(1), Pune V. Yashowardhan Promoters and Developers Pvt. Ltd., Pune

ITA 1476/PUN/2013

• Counselvise Citation: 147624514 RSA 2013
• Duration Of Justice: 1 year(s) 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 09-03-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 15-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS MITALI MADHUSMITA
• Keywords: Bogus purchase; Additional evidence; Retraction
• Section: 143(3); 153A; 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.1418/PN/2013 (ASSESSMENT YEAR : 2007-08) M/S YASHOWARDHAN PROMOTERS & DEVELOPERS PVT. LTD., 2 ND FLOOR, CITY POINT, DHOLE PATIL ROAD, PUNE 411 001. PAN : AAACY2528A . APPELLANT VS. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1(1), PUNE. . RESPONDENT ITA NOS.1475 TO 1477/PN/2013 (ASSESSMENT YEARS : 2007-08 TO 2009-10) DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1(1), PUNE. . APPELLANT VS. M/S YASHOWARDHAN PROMOTERS & DEVELOPERS PVT. LTD., 2 ND FLOOR, CITY POINT, DHOLE PATIL ROAD, PUNE 411 001. PAN : AAACY2528A . RESPONDENT ASSESSEE BY : MR. NIKHIL PATHAK DEPARTMENT BY : MRS. MITALI MADHUSMITA DATE OF HEARING : 09-03-2015 DATE OF PRONOUNCEMENT : 18-03-2015 ORDER PER G. S. PANNU, AM THE CAPTIONED APPEALS, THREE BY THE REVENUE AND ONE BY THE ASSESSEE, BELONGING TO DIFFERENT ASSESSMENT YEARS I NVOLVE A COMMON ISSUE, THEREFORE THEY HAVE BEEN CLUBBED AND HEARD TOGETHER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE A ND BREVITY. ITA NO.1418/PN/2013 ITA NOS.1475 TO 1477/PN/2013 2. IN ALL THE APPEALS, THE PRIMARY DISPUTE IS WITH REGARD TO THE ACTION OF THE ASSESSING OFFICER IN TREATING PURCHASES MADE BY THE ASSESSEE FROM CERTAIN PARTIES AS BOGUS. THE FACTS RELEVANT TO APPRECIATE THE BACKGROUND OF THE DISPUTE IS THAT THE ASSESSEE COMPANY BELONGS TO M/S KOLTE PATIL DEVELOPERS LTD. GROUP CASES WHEREIN A SEARCH ACTION U/S 132(1) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) WAS CONDUCTED IN COURSE O F WHICH, DEPARTMENT MADE ENQUIRIES WITH SOME OF THE PARTIES WHO HAD SUPPLIED STEEL AND OTHER MATERIAL TO THE ASSESSEE AS WELL AS TO OTHER GROUP COMPANIES BE LONGING TO M/S KOLTE PATIL DEVELOPERS LTD. GROUP OF CASES. ON THE STRENGTH OF SUCH ENQUIRIES CARRIED OUT ON SIX SUPPLIERS, NAMELY, (I) M/S UNIQUE FERRO META LS PVT. LTD.; (II) M/S FRESHO METALS PVT. LTD.; (III) M/S PRAKY METALS PVT. LTD.; (IV) M/S MEGHANA ENTERPRISES; (V) M/S NARENDRAKUMAR & CO.; AND, (VI) M/S R.D. JAI N & CO., IT WAS HELD BY THE ASSESSING OFFICER THAT THE PURCHASES MADE FROM THEM WERE BOGUS. APART FROM ENQUIRIES WITH THE AFORESAID SIX CONCERNS, ASSESSIN G OFFICER ALSO HELD THAT PURCHASES MADE FROM OTHER FIVE PARTIES, NAMELY, (I) VORA MERCANTILE PVT. LTD.; (II) M/S MAYOORA METAL TRADE CORPORATION; (III) YAS H TRADING & CO.; (IV) M/S SHRI SURYA STEEL; AND, (V) M/S SATYAM STEEL WERE AL SO BOGUS. IN THE CASE OF M/S KOLTE PATIL DEVELOPERS LTD. VIDE ITA NOS.1411 T O 1415/PN/2013 DATED 20.02.2015, THE TRIBUNAL HAS DEALT WITH AN IDENTICA L CONTROVERSY, INTER-ALIA, PURCHASES MADE FROM THE AFORESAID ELEVEN PARTIES WH ICH HELD TO BE BOGUS BY THE ASSESSING OFFICER. IT WAS A COMMON POINT BETWE EN THE PARTIES THAT THE ISSUES RAISED IN THE CAPTIONED APPEALS ARE COVERED BY THE DECISION OF THE TRIBUNAL IN THE CASE OF M/S KOLTE PATIL DEVELOPERS LTD. VIDE ORDER DATED 20.02.2015 (SUPRA). IN THIS BACKGROUND, NOW WE MAY DEAL WITH THE ISSUES RAISED IN THE INDIVIDUAL CAPTIONED APPEALS SO AS TO IMPART COMPLETENESS TO THIS ORDER. 3. FIRST, WE SHALL TAKE-UP THE CROSS-APPEALS PREFER RED BY THE ASSESSEE AND THE REVENUE VIDE ITA NOS.1418 & 1475/PN/2013 FOR AS SESSMENT YEAR ITA NO.1418/PN/2013 ITA NOS.1475 TO 1477/PN/2013 2007-08 RESPECTIVELY. THE CROSS-APPEALS ARE DIRECT ED AGAINST A CONSOLIDATED ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I I, PUNE DATED 28.03.2013 WHICH, IN TURN, HAS ARISEN FROM ORDER DATED 31.12.2 010 PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S. 153A OF THE ACT RESPECTIVELY. 4. IN ASSESSMENT YEAR 2007-08, THE ASSESSING OFFICE R, FOLLOWING HIS STAND IN THE OTHER ASSESSEES OF THE KOLTE PATIL DEVELOPER S LTD. GROUP, HELD THAT PURCHASES MADE BY THE ASSESSEE FROM THE FOLLOWING T HREE SUPPLIERS WERE BOGUS : (I) PARKY MERCANTILE PVT. LTD. RS.13,30,3 52/-; (II) SHREE SURYA STEEL RS.10,34,479/-; AND, (III) MAYOORA METAL TRADE CORP ORATION RS.10,65,080/-. AS A CONSEQUENCE, PURCHASE OF STEEL FROM THE AFORES AID THREE PARTIES TO THE EXTENT OF RS.34,29,911/- WAS HELD TO BE BOGUS AND T HE SAID SUM WAS ADDED TO THE RETURNED INCOME. THE CIT(A) HAS SUSTAINED THE ADDITION WITH RESPECT TO THE PURCHASE FROM M/S PRAKY MERCANTILE PVT. LTD. RS.13,30,352/- AND HAS DELETED THE ADDITION WITH RESPECT TO THE PURCHASES FROM SHREE SURYA STEEL AND MAYOORA METAL TRADE CORPORATION OF RS.10,34,479/- A ND RS.10,65,080/- RESPECTIVELY. THE ASSESSEE AND REVENUE HAVE CHALLE NGED THE ACTION OF THE CIT(A) IN THEIR RESPECTIVE ASSESSEE HAS CHALLENGE D THE SUSTENANCE OF ADDITION OF RS.13,30,352/-, WHEREAS REVENUE HAS CHA LLENGED THE DELETION OF ADDITION OF RS.20,99,559/-. IT WAS ALSO A COMMON P OINT BETWEEN THE PARTIES THAT THE IMPUGNED DECISION OF THE CIT(A) IS SIMILAR TO HIS DECISION IN THE CASE OF M/S KOLTE PATIL DEVELOPERS LTD., WHICH WAS A SUB JECT-MATTER OF CONSIDERATION BY THE TRIBUNAL IN ITS ORDER DATED 20.02.2015 (SUPR A). 5. IN SO FAR AS ASSESSEES APPEAL AGAINST THE ADDIT ION OF RS.13,30,352/- ON ACCOUNT OF PURCHASES FROM M/S PRAKY MERCANTILE PVT. LTD. IS CONCERNED, THE SAME IS LIABLE TO BE DISMISSED HAVING REGARD TO THE DECISION OF THE TRIBUNAL IN THE CASE OF M/S KOLTE PATIL DEVELOPERS LTD. VIDE OR DER DATED 20.02.2015 ITA NO.1418/PN/2013 ITA NOS.1475 TO 1477/PN/2013 (SUPRA) ON THE SIMILAR ISSUE. THE RELEVANT DISCUSS IONS IN THE ORDER OF THE TRIBUNAL DATED 20.02.2015 (SUPRA) READ AS UNDER :- 23. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISS IONS. IN SUM AND SUBSTANCE, THE DISPUTE IS WITH REGARD TO THE PURCHA SES CLAIMED TO HAVE BEEN EFFECTED BY THE ASSESSEE FROM THE AFORESAID 11 PART IES. THE CASE SETUP BY THE ASSESSING OFFICER IS THAT THE PURCHASE OF STEEL , ETC. MADE FROM THE SAID 11 PARTIES WAS IN-GENUINE AND THEREFORE AN AMOUNT OF R S.7,75,34,092/- REPRESENTING PURCHASES EFFECTED FROM SUCH PARTIES H AS BEEN DISALLOWED WHILE COMPUTING THE TOTAL INCOME. THE REASONS FOR THE AS SESSING OFFICER TO HOLD THE PURCHASES AS BOGUS HAVE BEEN DETAILED BY US IN THE EARLIER PART OF THIS ORDER AND ARE NOT BEING REPEATED FOR THE SAKE OF BREVITY. BE THAT AT IT MAY, IN OUR VIEW, THE PURCHASES EFFECTED FROM SIX PARTIES STAND ON A DIFFERENT FOOTING THAN THE PURCHASES EFFECTED FROM THE BALANCE FIVE PARTIE S. THE POINT OF DISTINCTION IS THE MANNER AND THE MATERIAL RELIED UPON BY THE A SSESSING OFFICER IN ORDER TO TREAT SUCH PURCHASES AS BOGUS. IN SO FAR AS THE PU RCHASE FROM THE SIX PARTIES IS CONCERNED, THE SAME HAS BEEN HELD TO BE BOGUS BA SED ON THE ENQUIRIES CONDUCTED BY THE DEPARTMENT IN THE POST-SEARCH PROC EEDINGS. STATEMENTS OF THE SIX PARTIES WERE RECORDED U/S 131 OF THE ACT, W HICH ELUCIDATED THAT ALL OF THEM DENIED OF HAVING MADE ACTUAL SUPPLY OF GOODS T O THE ASSESSEE. IN ONE OF THE CASES, THE ASSESSING OFFICER HAS ALSO REFERR ED TO THE STATEMENT RECORDED OF THE TRANSPORTER WHEREIN ALSO IT WAS CON FIRMED BY HIM THAT NO ACTUAL TRANSPORTATION OF GOODS WAS EFFECTED. THE A FORESAID ADVERSE MATERIAL OBTAINED BY THE REVENUE WAS PUT ACROSS TO THE ASSES SEE RIGHT FROM THE BEGINNING. IN THIS CONTEXT, IT WOULD ALSO BE RELEV ANT TO OBSERVE THAT NEITHER THE SIX SUPPLIERS AND NOR THE ASSESSEE HAS BEEN ABLE TO PRODUCE ON RECORD EVEN THE PRIMARY EVIDENCE TO SHOW THE MOVEMENT OF GOODS FROM THEM TO THE ASSESSEE. FOR INSTANCE, NO DELIVERY CHALLANS OR OC TROI RECEIPTS OR ANY OTHER FORM OF EVIDENCE OF DELIVERY HAS BEEN BROUGHT OUT. THE PLEA OF THE ASSESSEE WAS THAT THE PAYMENTS HAVE BEEN MADE THROUGH CHEQUE S AND THAT THE PURCHASES ARE EVIDENCED BY THE BILLS RAISED BY THE SAID SUPPLIERS. ASSESSEE ALSO ASSERTED THAT CROSS-EXAMINATION OF THE SAID PA RTIES WAS NOT ALLOWED TO THE ASSESSEE. 24. AS PER THE REVENUE, IN THE COURSE OF POST-SEARC H INVESTIGATIONS ITSELF, SHRI RAJESH PATIL, CMD OF THE ASSESSEE-COMPANY WAS CONFRONTED ON THIS ASPECT AND WAS OFFERED CROSS-EXAMINATION OF THE SAI D PARTIES. IT APPEARS THAT THE ASSESSEE DID NOT AVAIL OF THIS OPPORTUNITY AS T HE CFO OF THE ASSESSEE- COMPANY WAS NOT PRESENT BECAUSE THE DAY-TO-DAY NITT Y-GRITTY OF PURCHASES WAS NOT KNOWN TO THE CMD. EVEN IN THE COURSE OF AS SESSMENT PROCEEDINGS, IT TRANSPIRES THAT THE ASSESSING OFFICER ALLOWED AN OP PORTUNITY OF CROSS- EXAMINATION BUT ON THE RELEVANT DATE AND TIME, THE SUPPLIERS DID NOT TURN-UP. BE THAT AS IT MAY, IN OUR CONSIDERED OPINION, CROSS -EXAMINATION OF THE SUPPLIERS WOULD BECOME MATERIAL ONLY WHEN THE ASSES SEE IS ABLE TO DEMONSTRATE WITH CERTAIN PRIMARY EVIDENCE THAT THE STATEMENTS GIVEN BY THE SUPPLIERS ARE WRONG OR THAT THEY DO NOT REFLECT THE CORRECT STATE OF AFFAIRS. IN THIS CONTEXT, ASSESSEE HAS MERELY REFERRED TO THE P URCHASE BILLS ISSUED BY THE SUPPLIERS AND THE CHEQUE PAYMENTS MADE. SO HOWEVER , THERE IS NO OTHER EVIDENCE, NAMELY, GRNS, OCTROI RECEIPTS, DELIVERY C HALLANS, ETC. WHICH WOULD SHOW THAT THE SUPPLIES WERE INDEED MADE. THEREFORE , IN SUCH A SITUATION, CAN THE ABSENCE OF CROSS-EXAMINATION BE FATAL TO THE AD DITION IN QUESTION ?, ESPECIALLY WHEN AT THE INITIAL STAGE, AN OPPORTUNIT Y OF CROSS-EXAMINATION WAS INDEED ALLOWED, WHICH COULD NOT BE AVAILED FOR THE REASONS WE HAVE ALREADY STATED ABOVE. IN OUR VIEW, THE RIGHT OF CROSS-EXAM INATION IS NOT AUTOMATIC, BUT ITA NO.1418/PN/2013 ITA NOS.1475 TO 1477/PN/2013 IT WOULD BE INCUMBENT ONLY IN A SITUATION WHERE THE ASSESSEE IS ABLE TO PRIMA- FACIE DEMONSTRATE THAT THE ONUS CAST ON HIM TO ESTA BLISH HIS VERSION OF AFFAIRS IS BASED ON PRIMARY EVIDENCE. IN THIS CASE, THE AS SESSEE HAD FAILED TO LEAD ANY PRIMARY EVIDENCE, VIZ. GRNS, OCTROI RECEIPTS, D ELIVERY CHALLANS, ETC. WHICH WOULD SHOW THAT THE SUPPLIES WERE INDEED MADE. 25. NOW, THE ASSESSEE HAS ALSO REFERRED TO AN AFFID AVIT OF SHRI NARENDRAKUMAR TIMBODIA, PROP. OF NARENDRAKUMA & CO. AND PARTNER OF R.D. JAIN & CO., WHEREIN HE CONFIRMED THAT THE PURCHASES MADE BY THE ASSESSEE FROM HIM WERE GENUINE. THIS AFFIDAVIT WAS OBTAINED BY THE ASSESSEE ONLY AFTER THE COMPLETION OF ASSESSMENT PROCEEDINGS AND WAS SU BMITTED TO THE CIT(A). THE CIT(A) HAS ADMITTED SUCH ADDITIONAL EVIDENCE AN D ON THAT THERE IS NO DISPUTE. HOWEVER, HE HAS NOT ACCEPTED THE AVERMENT S MADE THEREIN. WE HAVE ALSO PERUSED THE COPY OF SUCH AFFIDAVIT, A COP Y OF WHICH HAS BEEN PLACED IN PAPER BOOK. IN THIS CONNECTION, WE HAVE ALSO PE RUSED THE STATEMENT OF SHRI NARENDRAKUMAR TIMBODIA RECORDED U/S 131 OF THE ACT ON 15.09.2008, WHOSE RELEVANT PORTION HAS BEEN EXTRACTED IN THE ASSESSME NT ORDER ITSELF. IN HIS DEPOSITION, HE HAS CATEGORICALLY CONFESSED THAT THE RE IS NO ACTUAL SUPPLY OF GOODS TO THE ASSESSEE AND HE EXPLAINED THAT IN ORDE R TO GIVE A COLOUR OF GENUINENESS TO THE SALE BILLS, THEY HAVE PREPARED T HE LORRY RECEIPT OF M/S NEW ARC TRANSPORT SHOWING TRANSPORTATION OF GOODS T O THE ASSESSEE. THE AFORESAID AVERMENT OF THE SAID PERSON MADE IN THE C OURSE OF POST-SEARCH ENQUIRIES STOOD CORROBORATED BY THE STATEMENT DEPOS ED BY THE TRANSPORTER, M/S NEW ARC TRANSPORT. IN CONTRAST, THE AFFIDAVIT FURNISHED IN THE COURSE OF THE APPELLATE PROCEEDINGS BEFORE THE CIT(A) DOES NO T DEAL WITH THE ABOVE CIRCUMSTANCE AND IT DOES NOT EVEN EXPLAIN THE REASO NS FOR RETRACTION OF HIS STATEMENT, AND IN ANY CASE, THE RETRACTION IS UNCOR ROBORATED. IN-FACT, THE STATEMENT MADE BY HIM IN THE COURSE OF POST-SEARCH ENQUIRIES STANDS CORROBORATED BY THE STATEMENT OF THE TRANSPORTER WH EREAS THERE IS NO SUCH CORROBORATION TO HIS AVERMENTS MADE IN THE AFFIDAVI T FURNISHED BEFORE THE CIT(A). UNDER THESE CIRCUMSTANCES, IN OUR VIEW, TH E ORIGINAL ADMISSION OF THE SAID PERSON MADE AT THE TIME OF POST-SEARCH ENQUIRI ES WOULD HOLD THE FIELD. THUS, ON THIS ASPECT ALSO, WE FIND THAT THE CIT(A) MADE NO MISTAKE. THEREFORE, ON THE ASPECT OF THE PURCHASES EFFECTED FROM THE SIX PARTIES WITH WHOM ENQUIRIES WERE CONDUCTED DURING POST-SEARCH PE RIOD, THE CIT(A) JUSTIFIABLY HELD SUCH PURCHASES AS BOGUS. WE HEREB Y AFFIRM HIS ACTION, AND ASSESSEE FAILS ON THIS ASPECT. 26. BEFORE PARTING ON THIS ISSUE, WE MAY ALSO TOUCH -UPON AN ALTERNATE PLEA RAISED BY THE ASSESSEE WITH REGARD TO THE QUANTUM O F ADDITION ON THIS COUNT. IN THIS CONTEXT, ASSESSEE POINTED OUT THAT IF THE E NTIRE AMOUNT OF PURCHASE DEBITED IN THE PROFIT & LOSS ACCOUNT WITH RESPECT T O THE SIX PARTIES IS DISALLOWED, IT WOULD MEAN THAT THE CORRESPONDING CO NSUMPTION OF STEEL HAS NOT TAKEN PLACE IN QUANTITATIVE TERMS. BEFORE THE LOWE R AUTHORITIES, ASSESSEE HAD FURNISHED A WORKING, WHICH WAS CONFIRMED BY A STRUC TURAL ENGINEER REGARDING THE MINIMUM REQUIREMENT OF STEEL IN THE PROJECTS UN DERTAKEN BY THE ASSESSEE. AS PER THE SAID WORKING, IF THE AFORESAID DISPUTED QUANTITY OF STEEL PURCHASE WAS EXCLUDED, IT WOULD SHOW THAT THE CONSUMED QUANT ITY OF STEEL WAS LOWER THAN THE MINIMUM REQUIRED TO UNDERTAKE CONSTRUCTION . THEREFORE, ACCORDING TO THE ASSESSEE, THE ONLY PRESUMPTION THAT CAN BE WITH DRAWN IS THAT ASSESSEE HAD INDEED EFFECTED THE PURCHASES. IT WAS POINTED OUT THAT ON THE FAILURE OF THE ASSESSEE TO SUBSTANTIATE THE PURCHASES, AT BEST , THE ADDITION CAN BE MADE WITH RESPECT TO THE GROSS PROFIT ELEMENT CORRESPOND ING TO THE AMOUNT OF PURCHASES BUT NOT THE ENTIRE AMOUNT OF PURCHASE BIL LS. THE RELIANCE HAS ALSO BEEN PLACED ON CERTAIN DECISIONS IN THIS REGARD, WH ICH WE HAVE NOTED IN EARLIER PARAS. ITA NO.1418/PN/2013 ITA NOS.1475 TO 1477/PN/2013 27. WE HAVE CAREFULLY CONSIDERED THE AFORESAID ALTE RNATE PLEA OF THE ASSESSEE BUT FIND OURSELVES UNABLE TO ACCEPT THE SA ME, HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. THE P ROPOSITION BEING RELIED UPON BY THE ASSESSEE ON THE STRENGTH OF THE DECISIO NS OF THE HONBLE GUJARAT HIGH COURT NOTED EARLIER IS NOT DISPUTED. BUT THE MOOT QUESTION IS AS TO WHETHER THE POSITION CANVASSED BY THE ASSESSEE THAT THE QUANTITY OF STEEL CORRESPONDING TO THE IMPUGNED PURCHASES HAS BEEN CO NSUMED STANDS ESTABLISHED OR NOT ? THE CONFIRMATION OF THE STRUC TURAL ENGINEER, A COPY OF WHICH HAS BEEN PLACED IN PAPER BOOK AT PAGE 79 DOES NOT ELABORATE AS TO THE TIME PERIOD IN WHICH THE CONSUMPTION OF STEEL HAS T AKEN PLACE. MOREOVER, AT THE RELEVANT POINT OF TIME, MULTIPLE PROJECTS OF TH E ASSESSEE WERE UNDER CONSTRUCTION AND THERE IS NO MATERIAL TO CO-RELATE AS TO WHETHER AT THE TIME WHEN THE IMPUGNED PURCHASES WERE EFFECTED ANY PROJE CTS WERE BEING CARRIED OUT. THEREFORE, THE RATIO OF THE JUDGEMENTS OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF (I) BHOLANATH POLY FAB PVT. LTD. (SU PRA); AND, (II) SANJAY OILCAKE INDUSTRIES (SUPRA) CANNOT BE APPLIED IN THE PRESENT CASE. THEREFORE, THE ACTION OF THE CIT(A) IN HOLDING THE PURCHASES EFFEC TED FROM SIX PARTIES AS BOGUS IS AFFIRMED. 6. FOLLOWING THE AFORESAID PRECEDENT, THE ACTION OF THE LOWER AUTHORITIES IN HOLDING THE PURCHASES EFFECTED FROM M/S PRAKY MERCA NTILE PVT. LTD. AS BOGUS IS HEREBY SUSTAINED. 7. IN SO FAR AS THE CROSS-APPEAL OF THE REVENUE IS CONCERNED, THE GROUNDS OF APPEAL RAISED, READ AS UNDER :- 1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME-TAX (A) ERRED IN TREATING THE BOGUS PURCHASE S OF STEEL FROM FIVE PARTIES NAMELY (A) VORA MERCANTILE PVT. LTD., (B) M/S MAYOO RA METAL TRADE CORPORATION, (C) M/S YASH TRADING CO., (D) M/S SHRE E SURYA STEEL, AND (E) M/S SATYAM STEEL AS GENUINE IGNORING THE MATERIALS AVAI LABLE ON RECORDS BROUGHT BY A.O. 2) THE ORDER OF THE COMMISSIONER OF INCOME-TAX (A) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 8. ALTHOUGH, THE GROUND OF APPEAL RAISED BY THE REV ENUE CONTAINS PURCHASES EFFECTED FROM (I) VORA MERCANTILE PVT. LT D.; (II) M/S MAYOORA METAL TRADE CORPORATION; (III) M/S YASH TRADING CO.; (IV) M/S SHREE SURYA STEEL; AND, (V) M/S SATYAM STEEL, BUT IN SO FAR AS ASSESSMENT Y EAR 2007-08 IS CONCERNED, PURCHASES IN QUESTION RELATE TO M/S SHREE SURYA STE EL RS.10,34,479/- AND M/S MAYOORA METAL TRADE CORPORATION RS.10,65,080/ - ONLY; AND, THE OTHER PARTIES MENTIONED INVOLVE PURCHASES EFFECTED IN THE BALANCE CAPTIONED ITA NO.1418/PN/2013 ITA NOS.1475 TO 1477/PN/2013 ASSESSMENT YEARS, I.E. 2008-09 AND 2009-10. THE RE VENUE HAS RAISED A COMMON GROUND OF APPEAL FOR ALL THREE CAPTIONED YEA RS. 9. ON THIS ASPECT, THE TRIBUNAL VIDE ITS ORDER DATE D 20.02.2015 (SUPRA) AFFIRMED THE ORDER OF THE CIT(A) AND THE RELEVANT D ISCUSSION IS AS UNDER :- 28. NOW, WE MAY DEAL WITH THE DECISION OF THE CIT( A) WHEREBY THE PURCHASES MADE FROM FIVE PARTIES HAVE BEEN ACCEPTED . IN THIS CONTEXT, WE FIND THAT THE ASSESSING OFFICER DID NOT CARRY OUT A NY THIRD PARTY VERIFICATION AS HE HAD UNDERTAKEN WITH RESPECT TO THE SIX PARTIES D ISCUSSED EARLIER. THE FIVE PARTIES I.E. (I) VORA MERCANTILE PVT. LTD.; (II) M/ S MAYOORA METAL TRADE CORPORATION; (III) YASH TRADING & CO.; (IV) M/S SHR I SURYA STEEL; AND, (V) M/S SATYAM STEEL WERE NOT PUT THROUGH ANY ENQUIRY OR VE RIFICATION BY THE ASSESSING OFFICER. IT WAS ONLY ON THE BASIS OF THE DOCUMENTS PUT-FORTH BY THE ASSESSEE THAT PURCHASES FROM THE SAID PARTIES HAVE BEEN HELD TO BE BOGUS. NOTABLY, ASSESSEE HAD FURNISHED THE INVOICES RAISED BY THE SAID PARTIES AND HAD ALSO EXPLAINED THAT ALL THE PAYMENTS WERE MADE BY THE CHEQUES. ASSESSEE HAD ALSO FURNISHED THEIR SALES-TAX NUMBERS . WITH RESPECT TO THE TRANSPORTATION, ASSESSEE HAD EXPLAINED THAT THE RES PONSIBILITY OF TRANSPORTATION WAS OF THE SUPPLIER AND THEREFORE ASSESSEE COULD NO T PRODUCE THE TRANSPORT RECEIPTS. THE EXPLANATIONS PUT-FORTH BY THE ASSESS EE WERE NOT SUBJECT TO ANY ENQUIRY OR VERIFICATION BY THE ASSESSING OFFICER BU T HAVE BEEN MERELY DISBELIEVED. THE ASSESSING OFFICER, IN OUR VIEW, W AS INFLUENCED BY THE OUTCOME OF ENQUIRIES MADE WITH RESPECT TO THE OTHER SIX PARTIES. HOWEVER, IN THE ABSENCE OF ANY MATERIAL ON RECORD TO NEGATE THE POSITION CANVASSED BY THE ASSESSEE WITH RESPECT TO THE SAID FIVE PARTIES, THE EXPLANATION OF THE ASSESSEE COULD NOT BE DISBELIEVED. UNDER THESE CIRCUMSTANCE S, IN OUR VIEW, THE CIT(A) MADE NO MISTAKE IN DELETING THE ADDITION WITH RESPE CT TO THE AFORESAID FIVE PARTIES. AS A CONSEQUENCE, ON THIS ASPECT REVENUE FAILS. 10. FOLLOWING THE AFORESAID PRECEDENT, THE ORDER OF THE CIT(A) DELETING THE ADDITION MADE WITH RESPECT TO THE PURCHASES FROM M/ S SHREE SURYA STEEL AND M/S MAYOORA METAL TRADE CORPORATION FOR ASSESSMENT YEAR 2007-08 IS HEREBY AFFIRMED. THUS, REVENUE FAILS IN ITS APPEAL FOR AS SESSMENT YEAR 2007-08. 11. THUS, FOR ASSESSMENT YEAR 2007-08 APPEAL OF THE ASSESSEE AS WELL AS THE CROSS-APPEAL OF THE REVENUE ARE DISMISSED. 12. IN SO FAR AS THE APPEALS OF THE REVENUE FOR ASS ESSMENT YEARS 2008-09 AND 2009-10 ARE CONCERNED, THEY ARE DIRECTED AGAINS T THE ORDER OF THE ITA NO.1418/PN/2013 ITA NOS.1475 TO 1477/PN/2013 COMMISSIONER OF INCOME TAX (APPEALS)-II, PUNE DATED 28.03.2013 WHICH, IN TURN, HAS ARISEN FROM TWO DIFFERENT ASSESSMENT ORDE RS DATED 31.12.2010 PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S. 1 53A OF THE ACT RESPECTIVELY. 13. IN THIS APPEALS ALSO, THE CIT(A) HAS DELETED TH E ADDITION WITH RESPECT TO THE PURCHASES MADE FROM (I) SHREE SURYA STEEL; (II) MAYOORA METAL TRADE CORPORATION; AND, (III) YASH TRADING CO., AN ISSUE WHICH IS LIABLE IS TO BE DECIDED IN THE LIGHT OF THE ORDER OF THE TRIBUNAL D ATED 20.02.2015 (SUPRA) WHICH HAS FORMED THE BASIS TO DISPOSE OF THE APPEAL OF TH E REVENUE FOR ASSESSMENT YEAR 2007-08 IN THE EARLIER PARAS. FOLLOWING THE A FORESAID PRECEDENT, IN THESE APPEALS ALSO, THE ORDER OF THE CIT(A) IS HEREBY AFF IRMED AND THE REVENUE FAILS. 14. RESULTANTLY, ALL THE CAPTIONED APPEALS ARE DISM ISSED. ORDER PRONOUNCED ON 18 TH MARCH, 2015. SD/- SD/- (SUSHMA CHOWLA) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 18 TH MARCH, 2015. SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-II, PUNE; 4) THE CIT-II, PUNE; 5) THE DR A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE