ITO, Patiala V. Sh. Rajesh Kumar Prop., Patiala

ITA 195/CHANDI/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2321 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 08-04-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 23-02-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N K SAINI
• Assessee Lawyers: D K GOYAL
• Keywords: Bogus purchase; Unexplained cash credit; Onus to prove
• Section: 133(6); 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI T.R. SOOD, A.M AND MS. SUSHMA CHOWLA, J M ITA NO. 195/CHD/2011 ASSESSMENT YEAR : 2007-08 I.T.O. WARD 3, PATIALA V RAJESH KUMAR PROP. M/S MADAN LAL RAJESH PATIALA AGOPK 7494 A (APPELLANT) (RESPONDENT) APPELLANT BY SHRI N.K. SAINI RESPONDENT BY: SHRI D.K. GOYAL DATE OF HEARING 8.4.2013 DATE OF PRONOUNCEMENT 29.4.2013 O R D E R PER T.R.SOOD, A.M THIS APPEAL IS DIRECTED AGAINST THE ORDER PASSED BY THE LD. CIT(A), PATIALA DATED 31.12.2010. 2. IN THIS APPEAL THE REVENUE HAS RAISED THE FOLLOW ING TWO EFFECTIVE GROUNDS: 1 IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WHET HER THE LD. CIT(A) IS LEGALLY JUSTIFIED IN DELETING THE ADDITION OF RS. 43,15,660/- MADE BY THE ASSESSING OFFICER ON AC COUNT OF UNEXPLAINED CREDIT U/S 68 OF THE ACT EVEN WHEN THE ASSESSEE HAD FAILED DISCHARGE HIS ONUS TO PROVE THE GENUINENESS OF THE SAME DESPITE HAVING BEEN PROVIDE D WITH SEVERAL OPPORTUNITIES DURING THE COURSE OF TH E ASSESSMENT PROCEEDINGS. 2 IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WHETH ER THE LD. CIT(A) IS LEGALLY JUSTIFIED IN DELETING THE ADDITION OF RS. 1,95,925/- MADE BY THE ASSESSING OFFICER ON ACC OUNT OF UNEXPLAINED FREIGHT EXPENSES EVEN WHEN THE ASSE SSEE HAD FAILED TO PROVE THE GENUINENESS OF THE SAME BY 2 PRODUCING THE SUPPORTING VOUCHERS DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. 3 GROUND NO. 1 BRIEF FACTS OF THE CASE ARE THAT DURING ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTICE D THAT THE ASSESSEE HAS SHOWN LIABILITY OF RS. 43,15,660/- IN THE NAME OF M/S LUXMI INDUSTRIES, GURU HARSAHAI, FEROZEPUR. THE ASSESSEE WAS ASKED TO PRODUCE THIS CREDITOR ALONG WITH BOOKS OF ACCOUNT FOR VERIFICATION/CONFIRMATION. AFTER VARIOUS OPPORT UNITIES THE ASSESSEE COULD NOT PRODUCE THIS PERSON. THEREAFTER A LETTER CALLING FOR INFORMATION U/S 133(6) OF THE ACT WAS I SSUED, THROUGH SPEED POST TO M/S LUXMI INDUSTRIES, GURU HA RSAHAI WHICH WAS RECEIVED BACK WITH THE REMARKS OF THE POS TAL AUTHORITIES REFUSED TO RECEIVE. IN THESE CIRCUMS TANCES A COMMISSION U/S 131(1)(D) TO THE A.C.I.T. CIRCLE-III , FEROZEPUR REQUIRING HIM TO VERIFY THE CREDIT OF RS. 43,15,660 /- WAS ISSUED. THE A.C.I.T. ISSUED SUMMONS IN THE NAME OF M/S LUXM I INDUSTRIES, GURU HARSAHAI THROUGH SPECIAL MESSENGER WHO CAME BACK AND STATED THAT RICE SHELLER RUN BY M/S L UXMI INDUSTRIES HAD BEEN CLOSED. THE A.C.I.T. PERSONALL Y MADE AN ATTEMPT BUT COULD NOT SUCCEED IN GETTING THE LIABIL ITY CONFIRMED. THE ASSESSING OFFICER FURTHER NOTICED THAT THIS PA RTY I.E. M/S LUXMI INDUSTRIES HAD ISSUED BILLS IN SERIATIM ON VA RIOUS DATES FROM 216 TO 236 FROM 15.12.2006 TO 16.1.2007 AND TH EN 251 TO 257 FROM 23.1.2007 TO 3.2.2007. HE NOTED THAT THES E INVOICES WERE RAISED AFTER A GAP OF CERTAIN DATES BUT S TILL THEY WERE ISSUED IN CONTINUOUS SERIAL BASIS WHICH WAS NOT POSSIBLE. TH E GOODS WERE SAID TO HAVE BEEN TRANSPORTED BY M/S DASHMESH TRANS PORT CO. GURU HARSAHAI AND THE TRANSPORT COMPANY HAD ALSO ISSUED G.R. NOS. IN CONTINUOUS SERIAL NUMBERS. SUMMONS U/S 131 WE RE ALSO 3 ISSUED THROUGH SPEED POST TO M/S DESHMESH TRANSPORT CO. WHICH WERE RETURNED BY THE POSTAL AUTHORITIES WITH THE REMARKS THERE IS NO SUCH TRANSPORT CO. FINALLY THE ASSES SING OFFICER MADE AN ATTEMPT TO DETERMINE THE TRUCK NO AND ON VE RIFICATION FROM THE TRANSPORT OFFICER, SANGRUR IT WAS NOTED T HAT IN FACT THE TRUCKS THROUGH WHICH THE GOODS WERE SUPPOSED TO HAVE BEEN CARRIED, WERE NOT THE TRUCKS BUT THE SCOOTERS ETC. AS PER DETAIL BELOW: REGISTRATION NO. DESCRIPTION OF VEHICLE PB13-G-3555 SCOOTER PB13-F-4580 SCOOTER PB13-8215 TRACTOR PB13-F-6024 TRACTOR PB13-G-4489 SCOOTER 4 FINALLY THE ASSESSEE WAS GIVEN A FINAL OPPORTUNIT Y TO PRODUCE THE CREDITOR. THOUGH THE ASSESSEE APPEARED ON 25.11.2009 AND HIS STATEMENT WAS ALSO RECORDED U/S 131, THE ASSESSEE DID NOT PRODUCE THE CREDITOR. IN THE STAT EMENT IT WAS MAINLY STATED BY THE ASSESSEE THAT M/S LUXMI INDUST RIES HAS CLOSED THEIR BUSINESS FOR THE LAST 6 TO 7 YEARS BAC K AND THEY COULD NOT BE TRACED THEREAFTER. ON THE BASIS OF AB OVE ENQUIRIES THE ASSESSING OFFICER CONCLUDED THAT THE LIABILITY IS NOT GENUINE. HE ALSO FOUND THAT THE LIABILITY WAS DISCH ARGED IN FINANCIAL YEAR 2007-08 AND 2008-09 BY SHOWING CASH PAYMENT OF LESS THAN RS. 20,000 AND ONLY A SUM OF RS. 7.60 LAKHS WAS PAID THROUGH CHEQUES. THE ASSESSING OFFICER ALSO R ELIED ON THE FOLLOWING DECISIONS: GUMANI RAM SIRI CHAND V. CIT, 98 ITR 337 (PH) CIT V. KISHORILAL SANTOSHILAL, 216 ITR 9 (RAJ) 4 CIT V. MOHANAKALA (P), 291 ITR 278 (S.C) 5. ON APPEAL BEFORE THE LD. CIT(A), IT WAS MAINLY C ONTENDED THAT THE ASSESSEE HAD FILED ALL THE BILLS AS WELL A S CONFIRMATIONS. IT WAS ALSO STATED THAT IF THE PURC HASES WERE BOGUS THEN HOW THE ASSESSEE HAD BEEN ABLE TO SHOW CORRESPONDING SALES. SALES-TAX AND TELEPHONE NUMBE R OF THE PARTY WAS GIVEN AND THEREFORE, IT CANNOT BE PRESUME D THAT PARTY HAD REFUSED TO TAKE THE DELIVERY OF THE NOTICE SENT BY THE ASSESSING OFFICER. INFORMATION OF VARIOUS SALES-TA X BARRIERS WAS ALSO FILED TO SHOW THAT THE ASSESSEE HAD EXPORT ED GOODS OUT OF PUNJAB TO THE TUNE OF RS. 19,05,577/- IN FIN ANCIAL YEAR 2006-07. IT WAS STATED THAT THE REGISTRATION OF TR UCKS DID NOT MATTER MUCH AND THE ASSESSEE COULD NOT BE HELD RESP ONSIBLE IF WRONG PARTICULARS WERE GIVEN. MOREOVER LIABILITY WA S DISCHARGED IN LATER YEARS. IT WAS ALSO STATED THAT THE ASSESS EE HAD FILED FORM K-1 ISSUED BY THE MARKET COMMITTEE BEFORE THE ASSESSING OFFICER. THE LD. CIT(A) AFTER EXAMINING THE SUBMISS IONS, DELETED THE ADDITION. 6. BEFORE US, THE LD. DR FOR THE REVENUE MAINLY CAR RIED US THROUGH THE ASSESSMENT ORDER AND SUPPORTED THE SAME . HE REFERRED TO PAGE 12 WHICH IS COPY OF GR ISSUED BY M /S DASHMESH TRANSPORT CO. AND POINTED OUT THAT NO ENDO RSEMENT FOR RAHDARI FOR PASSING THE GOODS THROUGH VARIOUS SALES-TAX BARRIERS IS THERE ON GR WHICH CLEARLY SHOW THAT THE GOODS WERE NOT CARRIED OUT AT ALL. HE ALSO REFERRED TO PAGE 7 1 WHICH IS COPY OF THE TRANSACTIONS SAID TO HAVE BEEN CARRIED OUT BY THE LUXMI INDUSTRIES AND SUBMITTED THAT IN THIS REPORT NO TRANSACTION HAS BEEN CARRIED OUT IN THE NAME OF THE ASSESSEE. THEN HE REFERRED TO PAGE 93 AND POINTED OUT THAT SA LES SHOWN 5 BY THE ASSESSEE DURING THE YEAR WERE ONLY RS. 14,38 ,390/-. HE FURTHER SUBMITTED THAT THE ASSESSEE COULD NOT PRODU CE THE SAID PARTY I.E. M/S LUXMI INDUSTRIES BEFORE THE ASSESSIN G OFFICER TO PROVE THE GENUINENESS OF LIABILITY. HE ALSO REFERR ED TO APPELLATE ORDER AND POINTED OUT THAT THE CIT(A) HAS DELETED THE ADDITION WITHOUT GIVING ANY REASON. 7 ON THE OTHER HAND, THE LD. COUNSEL OF THE ASSESSE E STRONGLY SUPPORTED THE APPELLATE ORDER. HE ALSO RE FERRED TO PAGE 71 OF THE PAPER BOOK AND POINTED OUT THAT THIS INFORMATION RELATED TO INTER-STATE TRANSACTIONS WHICH MEANS SAL ES-TAX BARRIER WOULD SHOW ONLY THOSE GOODS WHICH WERE BEIN G EXPORTED OUT OF STATE AND SINCE THE ASSESSEE IS LOC ATED WITHIN THE STATE, THEREFORE, ASSESSEES TRANSACTION WOULD NOT BE REFLECTED IN THIS LIST. HE ALSO REFERRED TO PAGE 7 2 WHICH IS A COPY OF FORM K-1 AND WHICH IS REPORT OF THE MARKET COMMITTEE TO SHOW THAT THE MARKET FEE HAS BEEN PAID, WOULD SH OW THAT THE PURCHASES WERE GENUINE. 8 WE HAVE HEARD THE RIVAL SUBMISSIONS CAREFULLY. T HE CIT(A) HAS GIVEN HIS FINDINGS VIDE PAR A4.4 WHICH I S AS UNDER: IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND RIVAL SUBMISSIONS OF BOTH THE ASSESSING OFFICER IN HIS REMAND REPORT AND THE COUNSEL IN HIS WRITTEN SUBMIS SIONS IT IS SEEN THAT THE APPELLANT HAS TO A LARGE EXTENT DISCHARGED THE ONUS CAST ON HIM F OR SHOWING THE GENUINENESS OF THE PURCHASES MADE. THE APPELLANT HAS GIVEN PLAUSIBLE AND REASONABLE EXPLANATION AND HAS APTLY STATED THAT HE IS NOT RESPONSIBLE FOR THIRD PARTYS ACTS WHICH ARE SUBSEQUENT TO THE TRANSACTIONS DONE IN TH E YEAR UNDER CONSIDERATION. THE APPELLANT HAS FAIRLY EXPL AINED FROM THE BOOKS OF ACCOUNT AND ALL NECESSARY VOUCHER S PRODUCED BEFORE THE ASSESSING OFFICER REGARDING THE GENUINENESS OF THE PURCHASES. HE HAS MADE ALL POSS IBLE EFFORTS TO PRODUCE THE NECESSARY EVIDENCE TO DISCHA RGE THE ONUS CAST UPON HIM TO PROVE THE ENTRIES IN HIS BOOKS 6 OF ACCOUNT. IN VIEW OF THE CATEGORICAL REPLY OF TH E APPELLANT WHICH HAS NOT BEEN REBUTTED BY THE ASSESS ING OFFICER THERE IS NO GROUND TO MAKE THE IMPUGNED ADD ITION. NO MATERIAL HAS BEEN BROUGHT ON RECORD BY THE ASSES SING OFFICER TO SHOW THAT THESE ARE BOGUS PURCHASES EXCE PT THAT THERE IS MENTION OF SERIAL NO OF PURCHASE VOUC HERS NOT BEING CONTINUOUS OR GR RECEIPTS OF TRANSPORTER NOT BEING IN ORDER. THERE HAS BEEN NO CONCLUSIVE EVIDE NCE BEFORE THE ASSESSING OFFICER TO DOUBT THE GENUINENE SS OF PURCHASES AND TREAT THE SAME AS SHAM. THE ASSESSIN G OFFICER HIMSELF HAS ACCEPTED THE SUBSEQUENT PAYMENT S MADE BY THE APPELLANT TO THE THIRD PARTY IN THE FOL LOWING ASSESSMENT YEARS EITHER IN CASH OR IN CHEQUES WHERE BY THIS LIABILITY HAS BEEN DISCHARGED. IN VIEW OF ALL THE AVERMENTS OF THE LD. COUNSEL THERE IS NO S COPE LEF T BUT TO TREAT THESE PURCHASES AS GENUINELY RECORDED IN THE BOOKS OF ACCOUNT. THE ADDITION IS, THEREFORE, DIRECTED TO BE DELETED. A READING OF ABOVE CLEARLY SHOW THAT THE LD. CIT(A) HAS ALLOWED RELIEF ON GENERAL OBSERVATIONS WITHOUT MEETING THE SPECIFIC POINTS RAISED BY THE ASSESSING OFFICER. FIRST OF A LL THE ASSESSING OFFICER CATEGORICALLY GAVE SPECIFIC OPPOR TUNITIES TO THE ASSESSEE TO PRODUCE THE PARTY I.E. M/S LUXMI IN DUSTRIES TO PROVE THE GENUINENESS OF THE LIABILITY WHICH WAS NO T AVAILED BY THE ASSESSEE. THEREAFTER THE ASSESSING OFFICER SEN T ENQUIRY LETTER U/S 133(6) THROUGH SPEED POST WHICH WAS RETU RNED BY THE POSTAL AUTHORITIES WITH THE COMMENTS REFUSED TO RE CEIVE. THE ASSESSEE HAD CHALLENGED THIS FACT BEFORE THE LD. CI T(A) WITHOUT PROVIDING ANY EVIDENCE AND SIMPLY RAISING THE ISSUE THAT THERE WAS NO EVIDENCE TO SHOW THAT M/S LUXMI INDUSTRIES H AS REFUSED TO RECEIVE THE LETTER. WE ARE OF THE OPINION THAT REMARK OF THE POSTAL AUTHORITIES WOULD DEFINITELY CONSTITUTE A GO OD EVIDENCE. IN ANY CASE THE ASSESSING OFFICER HAS TAKEN THE CAU TION BY APPOINTING THE COMMISSION THROUGH ACIT, CIRCLE 3, F EROZEPUR VIDE LETTER NO. ITO/W-3/PTA/2009-10/463 DATED 16.9. 2009. THE COMMENTS OF THE ACIT, CIRCLE 3, FEROZEPUR HAS B EEN EXTRACTED AT PAGE 2 OF THE ASSESSMENT ORDER: 7 IN THIS REGARD, AN EFFORT WAS MADE TO CALL FOR THE BOOKS OF ACCOUNT BY ISSUE OF SUMMONS U/S 131 DATED 17.9.2009 . THE SUMMONS COULD NOT BE SERVED ON THE SAID ASSESSE E AND IT WAS REPORTED BY THE SPECIAL MESSENGER OF THI S OFFICE THAT THE PREMISES M/S LUXMI INDUSTRIES (A RI CE SHELLER) IS STATED TO HAVE BEEN CLOSED DOWN SINCE L AST 6-7 YEARS AND NO BUSINESS IS DONE THERE. ANOTHER NOTIC E SENT THROUGH SPEED POST HAS BEEN RECEIVED BACK WITH THE COMMENTS REFUSED TO TAKE DELIVERY. THEN I ALONGW ITH MY INSPECTOR PERSONALLY VISITED GURU HARSAHAI AND F OUND THAT THE PREMISES OF M/S LUXMI INDUSTRIES, GURU HAR SAHAI IS IN DILAPIDATED CONDITION AND NO BUSINESS IS BEIN G DONE THERE. LOCAL ENQUIRIES MADE REVEALED THAT THE RICE SHELLER HAS BEEN CLOSED DOWN SINCE LONG ABOUT 5-6 Y EARS BACK. THEREFORE, IN THE GIVEN CIRCUMSTANCES, THE INFORMATION REQUIRED TO BE VERIFIED COULD NOT BE VE RIFIED. THIS IS FOR YOUR INFORMATION AND NECESSARY ACTION. IT IS ALSO INFORMED THAT THE JURISDICTION OVER THIS CASE VESTS WITH I.T.O., WARD III(1), FEROZEPUR. YOURS FAITHFULLY, SD/- (SUKHDEV SINGH) ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-III, FEROZOEPUR WE FAIL TO UNDERSTAND WHY THE A.C.I.T. FEROZEPUR WO ULD SHOW THAT RICE MILL HAS BEEN CLOSED IF THE SAME WAS STI LL IN BUSINESS. THIS CLEARLY SHOWS THAT M/S LUXMI INDUST RIES WAS NOT FUNCTIONING AT ALL. THIS IS FURTHER VERIFIED THAT THE ASSESSEE WAS GIVEN FINAL OPPORTUNITY AND THE ASSESSEE APPEAR ED IN PERSON ON 25.11.2009. IN RESPONSE TO Q NO. 7 AND A NSWER, READ AS UNDER: Q NO. 7 - IN THE BALANCE SHEET FOR THE FINANCIAL YEAR 2006-07 RELELVANT FOR THE ASSESSMENT YEAR 2007 -08 A LIABILITY OF RS. 43,15,660/- HAS BEEN SHOWN IN THE NAME OF M/S LUXMI INDUSTRY, GURU HARSAHAI (FEROZEPUR). IN THIS REGARD, YOU WERE REQUIRED TO PRODUCE THE CREDITOR A LONG WITH HIS BOOKS OF ACCOUNT. HOWEVER, YOU HAVE FAILE D TO PRODUCE THE CREDITOR. SINCE THE ONUS TO PROVE THE GENUINENESS OF LIABILITY LIES UPON YOU, WHICH YOU H AVE FAILED, WHY THE LIABILITY OF RS. 43,15,660/- SHOULD NOT BE TREATED AS UNEXPLAINED, PLEASE CLARIFY THE SAME? 8 ANSWER - IN THIS REGARD, IT IS STATED THAT WE HAVE PURCHASED PHUCK AND NAKOO FROM M/S LUXMI INDUSTRIES , SAROOP SINGH WALA ROAD, GURU HARSAHAI (FEROZEPUR) DURING THE FINANCIAL YEAR 2006-07, IN BULK. WE HAV E TRIED TO LOCATE THE SAID PARTY, BUT IT IS GATHERED FROM T HE LOCAL PERSONS THAT THE SAID PARTY HAS CLOSED ITS BUSINESS AND THE WHEREABOUTS OF THE PARTY ARE NOT KNOWN. AS SUC H WE ARE UNABLE TO PRODUCE THE PARTY FOR VERIFICATION BE FORE YOU. THE ABOVE CLEARLY SHOW THAT THE ASSESSEE HAD CATEGO RICALLY ADMITTED BEFORE THE ASSESSING OFFICER THAT THE SAID PARTY HAD CLOSED ITS BUSINESS AND WHEREABOUTS OF THE PARTY WE RE NOT KNOWN. HOWEVER, BEFORE US, THE LD. COUNSEL HAD POI NTED OUT TO PAGES 1 & 2 OF THE PAPER BOOK WHICH ARE COPIES OF T HE ACCOUNTS OF THE ASSESSEE IN THE BOOKS OF M/S LUXMI INDUSTRIE S IN THEIR LETTER HEADS. WHEN IT WAS CLEARLY STATED THAT WHER EABOUTS OF M/S LUXMI INDUSTRIES WAS NOT TRACEABLE THEN HOW THE ASSESSEE WAS ABLE TO OBTAIN THESE COPIES OF ACCOUNTS. WE FA IL TO UNDERSTAND HOW THE ASSESSEE COULD TAKE A CONTRADICT ORY STAND WITHOUT EXPLAINING THE REASONS FOR SUCH CONTRADICTO RY STAND. EVEN BEFORE US, NO PLAUSIBLE EXPLANATION WAS OFFERE D TO SHOW THAT HOW BEFORE THE ASSESSING OFFICER IT WAS STATED THAT M/S LUXMI INDUSTRIES WAS NOT TRACEABLE AND WHEREABOUTS WERE NOT KNOWN THEN HOW LATER THEY WERE FOUND AND SOME INFOR MATION WAS OBTAINED FROM THEM. WE FURTHER FIND THAT THE A SSESSEE HAD SHOWN DISCHARGE OF LIABILITY MAINLY THROUGH CASH AN D CHEQUES OF RS. 7.60 LAKHS WERE PAID. ALL THESE FACTS CLEAR LY SHOW THAT IN FACT NO PURCHASES WERE MADE AND IT IS A CASE OF BOGUS LIABILITY. 9 IT IS SURPRISING THAT IN ADDITION TO M/S LUXMI IN DUSTRIES WHICH IS NOT TRACEABLE M/S DASHMESH TRANSPORT, WAS ALSO NOT FOUND ON THE ADDRESS WHO HAVE BEEN STATED TO CARRIE D THE 9 GOODS. THE SUMMONS ISSUED U/S 131 ON 3.12.2009 ON THE ADDRESS OF M/S DASHMESH TRANSPORT WERE RETURNED BY THE POSTAL AUTHORITIES WITH THE COMMENTS THERE IS NO S UCH TRANSPORT CO. THE ASSESSING OFFICER HAS TAKEN THE CARE FOR MAKING THE VERIFICATION FROM THE TRANSPORT OFFICER , SANGRUR REGARDING REGISTRATION OF VEHICLE NUMBERS AND IT WA S REPORTED BY THE TRANSPORT OFFICER THAT REGISTRATION IN THE F OLLOWING CASES DO NOT PERTAIN TO TRUCKS BUT TO OTHER VEHICLES. REGISTRATION NO. DESCRIPTION OF VEHICLE PB13-G-3555 SCOOTER PB13-F-4580 SCOOTER PB13-8215 TRACTOR PB13-F-6024 TRACTOR PB13-G-4489 SCOOTER 10 IN ADDITION TO ABOVE THE ASSESSING OFFICER HAS A LSO NOTICED THAT M/S LUXMI INDUSTRIES HAD ISSUED BILLS IN A SERIATIM AND THE DETAILS HAD BEEN NOTED AT PAGE 3 & 4 OF THE ASSESSMENT ORDER WHICH ARE AS UNDER: INVOICE NO. DTE AMOUNT G.R NO. OF THE TRANSPORT 216 15.12.2006 134591/- 1439 217 -DO- 134726/- 1440 218 -DO- 134456/- 1441 219 24.12.2006 134659/- 1442 220 -DO- 134862/- 1443 221 -DO- 134794/- 1444 222 29.12.2006 134229/- 1445 223 -DO- 134997/- 1446 224 -DO- 135064/- 1447 10 225 4.1.2007 134997/- 1448 226 -DO- 134726/- 1449 227 -DO- 134659/- 1450 228 10.1.2007 134862/- 1451 229 -DO- 135132/- 1452 230 -DO- 134581/- 1453 231 15.1.2007 134726/- 1454 232 -DO- 134997/- 1455 233 -DO- 135064/- 1456 234 16.1.2007 134659/- 1457 235 -DO- 134997/- 1458 236 -DO- 134794/- 1459 251 23.1.2007 199487/- 1460 252 25.1.2007 229940/- 1461 253 27.1.2007 233287/- 1462 254 29.1.2007 226527/- 1463 255 31.1.2007 199487/- 1683/- 256 2.2.2007 196140/- 1684 257 3.2.2007 199520/- 1688 FROM ABOVE IT IS CLEAR THAT THE BILLS FROM 216 TO 2 36 BETWEEN THE PERIOD OF ONE MONTH WITH GAP OF 4-5 DAYS IN BET WEEN WERE ISSUED TO THE ASSESSEE. IF M/S LUXMI INDUSTRIES WA S CONTINUOUSLY SELLING THE GOODS THEN HOW ALL THE BIL LS CAN BE ISSUED TO THE ASSESSEE ONLY. THOUGH IT MAY BE CORR ECT THAT SALES TAX BARRIER REPORT MAY PERTAIN TO THE GOODS C ARRIED OUT OF THE STATE AND THEREFORE, WOULD NOT CONTAIN THE NAM ES OF THE ASSESSEE BUT AT THE SAME TIME ENDORSEMENT MADE AT V ARIOUS 11 TAX BARRIERS IN THE FORM OF RAHDARI ARE ALSO CON SPICUOUSLY MISSING FROM THE GRS ISSUED BY M/S DASHMESH TRANSPO RT CO. (REFER GR AT PAGE 12 OF THE PAPER BOOK). IN THESE CIRCUMSTANCES, WE ARE OF THE OPINION THAT THE LD. C IT(A) HAS WRONGLY ACCEPTED THE LIABILITY AS GENUINE WITHOUT G IVING ANY REASON. ACCORDINGLY WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THAT OF THE ASSESSING OFFICER. 11 GROUND NO. 2 DURING THE ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAD ALS O SHOWN A SUM OF RS. 3,04,619/- ON ACCOUNT OF FREIGHT OUT OF WHICH A SUM OF RS. 1,95,925/- PERTAIN TO FREIGHT PAID ON ACCOUN T OF PURCHASES MADE FROM M/S LUXMI INDUSTRIES, GURU HARS AHAI. SINCE THE PURCHASES WERE HELD TO BE BOGUS, THIS FRE IGHT WAS ALSO ADDED TO THE INCOME OF THE ASSESSEE. SINCE TH E MATTER IS OF CONSEQUENTIAL NATURE AND THE LD. CIT(A) ALLOWED THIS FREIGHT. 12 BOTH THE PARTIES AGREED BEFORE US THAT THIS ADDI TION IS OF CONSEQUENTIAL NATURE TO THE ADDITION DEALT IN GROUN D NO. 1. SINCE WE HAVE HELD THE LIABILITY AND PURCHASES MADE BY M/S LUXMI INDUSTRIES TO BE BOGUS, WE SET ASIDE THE ORDE R OF THE LD. CIT(A) IN RESPECT OF THIS ITEM OF FREIGHT ALSO AND RESTORE THE ORDER OF THE ASSESSING OFFICER. 13. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED . ORDER PRONOUNCED ON 29.4.2013 SD/- SD/- (SUSHMA CHOWLA) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 29.4.2013 SURESH COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT/THE C IT(A)/THE DR 12