Keval Kadu Deore, Nashik V. Deputy Commissioner of Income-tax,

ITA 1998/PUN/2016

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6970 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 06-09-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Bogus purchase
• Section: 133(6); 143(2); 147; 148

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.1910/PUN/2016 / ASSESSMENT YEAR : 2011-12 THE ASST.COMMISSIONER OF INCOME TAX, CIRCLE 1, NASHIK. . / APPELLANT V/S KEVAL KADU DEORE, PLOT NO.04, SHIV PARVATI BUNGLOW, PUMPING STATION ROAD, GANGAPUR ROAD, NASHIK 422013. PAN : ADNPD3164C. . / RESPONDENT . / ITA NO.1998/PUN/2016 / ASSESSMENT YEAR : 2011-12 KEVAL KADU DEORE, PLOT NO.04, SHIV PARVATI BUNGLOW, PUMPING STATION ROAD, GANGAPUR ROAD, NASHIK 422013. PAN : ADNPD3164C. . / APPELLANT V/S THE DY.COMMISSIONER OF INCOME TAX, CIRCLE 1, NASHIK. . / RESPONDENT ASSESSEE BY : SHRI SANKET JOSHI. REVENUE BY : SHRI SUDHENDU DAS. / ORDER PER ANIL CHATURVEDI, AM : 1. THESE CROSS-APPEALS FILED BY ASSESSEE AND REVENUE A RE EMANATING OUT OF THE ORDER OF COMMISSIONER OF INCOME-TAX (A) 1, NASHIK DATED 29.06.2016 FOR A.Y. 2011-12. / DATE OF HEARING : 06.02.2019 / DATE OF PRONOUNCEMENT: 01.03.2019 2 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- ASSESSEE IS AN INDIVIDUAL AND IS STATED TO BE ENGAGED IN THE BUSINESS OF AS ELECTRICAL CONTRACTOR. ASSESSEE FILED HIS RE TURN OF INCOME FOR A.Y. 2011-12 ON 28.09.2011 DECLARING TOTAL INCOME AT RS.56,02,883/-. A NOTICE U/S 148 OF THE ACT WAS ISSUED O N 15.10.2013 AND IN RESPONSE TO WHICH ASSESSEE VIDE LETTER DATED 14.11.2013 SUBMITTED THAT THE ORIGINAL RETURN OF INCOME FILED ON 28.09.2011 MAY BE TREATED AS RETURN IN RESPONSE TO NOT ICE U/S 148 OF THE ACT. THEREAFTER, NOTICE U/S 143(2) OF THE ACT WAS ISS UED AND SERVED ON THE ASSESSEE. AO HAS NOTED THAT THERE WAS NO COMPLIANCE TO THE NOTICE. CONSEQUENTLY, ASSESSMENT WAS FRAMED U/ S 147 R.W.S. 144 OF THE ACT VIDE ORDER DT. 25.03.2015 AND THE TOTAL INC OME WAS DETERMINED AT RS.1,71,93,354/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO VIDE ORD ER DT.29.06.2016 GRANTED PARTIAL RELIEF TO THE ASSESSEE. AGGR IEVED BY THE ORDER OF LD.CIT(A), ASSESSEE AND REVENUE ARE NOW IN APPEAL BEFORE US. 3. THE GROUNDS RAISED BY THE REVENUE IN ITA NO.1910/PU N/2016 FOR A.Y. 2011-12 READS AS UNDER : 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD. CIT(A)-1, NASHIK WAS J USTIFIED IN DELETING THE ADDITION OF RS.86,92,853/ - OUT OF TOTA L ADDITION OF RS .1 ,15 , 90,471 / - ON ACCOUNT OF ALLEGED BOGUS PURCHASES FROM HAWALA D EALERS / PARTIES? 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE CIT(A)-1, NASHIK WAS JUSTIFIED IN DELETING THE PURCHASES TREA TED AS BOGUS WHEN THE APPELLANT HAD NOT BEEN ABLE TO PRODUCE THE CERT AIN PARTIES FROM WHOM PURCHASES WERE MADE WHEN LETTERS SENT TO THE P ARTIES WERE RETURNED UNDELIVERED OR THE PARTIES DID NOT RESPOND ? 3. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE LD CIT(A)-1, NASHIK ERRED IN ASSUMING THAT THE PURCHASES WERE ON LY INFLATED WHEN IT WAS CLEAR FROM THE CONDUCT OF THE ASSESSEE , THE PARTIES FOUND MISSING AND RESULTS OF THE INVESTIGATION OF ANOTHER GOVT. D EPARTMENT (SALES 3 TAX), THAT THE PURCHASES COULD NOT BE PROVED AS GEN UINE AND THEREFORE THE DISALLOWANCE BY THE AO WAS JUSTIFIED? 4. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE LD CIT(A)-1, NASHIK ERRED IN PRESUMING THAT SIMPLY BECAUSE NO AD DITION WAS MADE IN CASE OF SALES, IT WAS ACCEPTED AS GENUINE AND FU RTHER ASSUMING THAT THEREBY PURCHASES SHOULD BE GENUINE? 5. WHETHER THE LD. CIT(A) ERRED IN ACCEPTING THE AF FIDAVITS FROM SUPPLIERS WITHOUT ANY EXPLANATION FROM THE ASSESSEE WHY THE SUPPLIERS COULD NOT APPEAR BEFORE THE AO WHEN THEY WERE CALLE D FOR EXAMINATION? 6. THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CI T(A)-1, NASHIK MAY PLEASE BE CANCELLED AND THE ORDER OF ASSESSING OFFI CE MAY PLEASE BE RESTORED. 7. THE APPELLANT PRAYS TO ADDUCE SUCH FURTHER EVIDE NCE TO SUBSTANTIATE HIS CASE 4. ON THE OTHER HAND, THE GROUNDS RAISED BY THE ASSES SEE IN ITA NO.1998/PUN/2016 FOR A.Y. 2011-12 READS AS UNDER : 1. THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISALLOW ANCE OF RS.28,97,618/- OUT OF THE TOTAL DISALLOWANCE OF RS .1 ,15,90,471/-- MADE BY THE A.O. IN RESPECT OF PURCHASES MADE FROM ALLEGED HAWALA PARTIES ON THE BASIS OF INFORMATION OBTAINED FROM MAHARASHTRA SALES TAX DEPT . 2. THE LEARNED CIT(A) ERRED IN HOLDING THAT THE 25% OF THE AMOUNT OF PURCHASES MADE FROM THE ALLEGED HAWALA PARTIES WAS TO BE DISALLOWED WITHOUT APPRECIATING THAT NO SUCH DISALL OWANCE WAS WARRANTED ON FACTS OF THE CASE . 3. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT A. T HE ENTIRE PURCHASES MADE BY THE ASSESSEE FROM THE A BOVE PARTIES WERE SUPPORTED BY TAX INVOICES AND OTHER DO CUMENTARY EVIDENCES AND HENCE, THERE WAS NO REASON TO DOUBT T HE GENUINENESS OF THE SAID PURCHASES. B. THE PAYMENTS TO THE SAID PARTIES WERE MADE THROUGH BANK CHEQUES AND THE A.O. HAD NOT BROUGHT ANY EVIDENCE O N RECORD TO SHOW THAT THE PAYMENTS MADE BY THE ASSESSEE TO THES E PARTIES WERE WITHDRAWN BY IT AND RETURNED TO THE ASSESSEE I N CASH AND HENCE, IN THE ABSENCE OF ANY CONTRARY EVIDENCE, THE RE WAS NO REASON TO DOUBT THE GENUINENESS OF THE PAYMENTS MAD E BY THE ASSESSEE TO THESE PARTIES. 4. THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THA T- A. THE ABOVE SUPPLIERS HAD NOT PAID VAT AND HENCE, THE Y HAD LEFT THEIR REGISTERED PREMISES AND HENCE, THE ADDITION M ADE BY IGNORING THE VARIOUS DOCUMENTARY EVIDENCES FURNISHE D BY THE ASSESSEE WAS NOT JUSTIFIED MERELY BECAUSE THE ASSES SEE WAS NOT ABLE TO PRODUCE THESE PARTIES. B. THE A.O. HAD HIMSELF ADMITTED IN THE ASST . ORDER THAT HE WAS NOT ABLE TO LOCATE THE ABOVE ALLEGED HAWALA PARTIES AND THUS , THE A.O. WAS IN NO POSITION TO GRANT THE OPPORTUNITY OF CROSS 4 EXAMINATION OF THESE PARTIES TO THE ASSESSEE AND HE NCE, IN VIEW OF THE RATIO LAID DOWN BY HON'BLE SUPREME COURT IN THE CASE OF ANDAMAN TIMBER INDUSTRIES V. CCE [CIVIL APPEAL NO . 4228/2006 DATED02.09 . 2015], THE ADDITION MADE SOLELY ON THE BASIS OF STATEMENT OF SUCH SUPPLIERS RECORDED A T THE BACK OF THE ASSESSEE WAS NOT JUSTIFIED AT ALL. 5. WITHOUT PREJUDICE, THE ASSESSEE SUBMITS THAT THE DISALLOWANCE MADE @ 25% OF THE AMOUNT OF PURCHASES IS VERY HIGH AND T HE SAME MAY BE RESTRICTED TO A REASONABLE LEVEL CONSIDERING THE FACTS OF THE CASE. 5. SINCE THE GROUNDS RAISED BY THE ASSESSEE AND REVENU E ARE INTER-CONNECTED, BOTH THE APPEALS ARE CONSIDERED TOGETHER. 5.1. BEFORE US, THOUGH ASSESSEE AND REVENUE RAISED VARIOUS GRO UNDS BUT THE SOLE CONTROVERSY IS WITH RESPECT TO THE ADDITION MADE ON ACCOUNT OF BOGUS PURCHASES. 6. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO HAS NOTED THAT IN CASE OF ASSESSEE, INFORMATION WAS RECEIVED FROM MAH ARASHTRA SALES TAX DEPARTMENT THAT ASSESSEE HAS CLAIMED TO HAVE MADE PURCHASES FROM VARIOUS PARTIES AGGREGATING TO RS.1,15,90 ,471/- AND THE PARTIES FROM WHOM ASSESSEE HAD MADE PURCHASES ARE ALLEGEDLY BOGUS SUPPLIER OF BILLS WHO GAVE BILLS WITHOUT ACTUAL TRANSACT IONS OF SALE AND PURCHASE OF GOODS. IN ORDER TO VERIFY THE GEN UINENESS OF PURCHASES, NOTICE U/S 133(6) OF THE ACT WAS ISSUED TO T HE SUPPLIERS BUT THE NOTICES WERE RETURNED BACK BY THE POSTAL AUTH ORITIES WITH REMARKS NOT KNOWN. AO NOTED THAT ASSESSEE HAD ALSO NOT FILED COPY OF OCTROI RECEIPTS, COPY OF ANY LORRY RECEIPTS FOR TRANSPO RTATION OF PURCHASE MATERIAL, STOCK REGISTER SHOWING CONSUMPTION OF M ATERIAL PURCHASED ETC., AND THUS THE GENUINENESS OF THE PURCHAS ES HAS NOT BEEN ESTABLISHED BY THE ASSESSEE. AO THEREFORE CONCLUDE D THAT ASSESSEE HAS FAILED TO PROVE THE PURCHASES OF RS.1,15,90,4 71/- AND ACCORDINGLY MADE ITS ADDITION AS UNEXPLAINED / UNPROVED PURCHASES. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATT ER BEFORE 5 LD.CIT(A), WHO GRANTED PARTIAL RELIEF TO THE ASSESSEE BY RES TRICTING THE DISALLOWANCE TO 25% OF PURCHASES BY OBSERVING AS UNDER : 4.88 ADVERTING TO THE FACT IN THE INSTANT CASE, TH E ASSESSEE IS ENGAGED IN THE BUSINESS OF ELECTRICAL CONTRACTOR, UNDER THE NAME AND STYLE OF M/S K . K. DEORE ELECTRICALS . THE PARTIES , WHO ARE IN DISPUTE FOR PURCHASES ARE NEITHER PRODUCED BEFORE ME NOR BEFORE THE AO . HOWEVER , THE AO HAS NOT B R OUGHT ON RECORD ANY EVIDENCE TO PROVE THAT THE PURCHASES WERE BOGUS EXCEPT RELYING ON THE INFORMAT ION RECEIVED FORM SALES TAX DEPARTMENT. LEDGER EXTRACTS OF SUPPLIERS ACCOUNT REFLECTING ALL THE PURCHASES AND PAYMENT BY ACCOUNT PAYEE BANK CHE QUES HAVE BEEN F IL ED BY THE APPELLANT . HOWEVE R, I N ABSENCE O F PRODUCTION OF PARTIES THE ISSUE THAT PURCHASES WERE I NDEED FROM THEM CAN N O T BE VERIFIED . THE CONSUMPTION DETAIL IS NO TESTIMONY OF THE FACT THAT THE PURCHASES A R E NOT IN F LATED AND PARTIES ARE NOT BOGUS. SINCE SUPPL I ES HAVE BEEN MADE TO MSEDCL , NASHIK AND HAVE NOT BEEN QUESTIONED BY THE AO IN H IS ASSESSMENT IT I S QUITE LIKELY THAT THE APPELLANT HAD PROCURED THE GOODS F ROM SOMEWHERE ELSE MAY BE FROM OPEN MARKETS AND OBT AINED ACCOMMODATION BILLS FROM THE SUPPLIER VIZ. M/S. SUN ICO TRADERS, M/S. FASTO TRADERS PVT. LTD. & M/S. SAINATH TRADERS. NO CONFIRMATIONS OF PURCHASES FROM THE PARTIES ARE PRODUCED. AS PURCHA SES ARE CLAIMED BY THE ASSESSEE THE PRIMARY ONUS IS ON HIM TO PRODUCE THE PARTIES WHICH THE APPELLANT HAS FAILED TO DO. SINCE AO HAS NOT D OUBTED THE SALES THE ENTIRE PURCHASE CANNOT BE TERMED AS BOGUS. 4.88.1 THUS, IN MY OPINION THE FACTS ON RECORD DEM ONSTRATE THAT THIS NOT A CASE OF BOGUS PURCHASE BUT A CASE OF INFLATED PURCHASED AND AT BEST FROM BOGUS PA R TIES. CONS I DERING THE FACTS AND C I RCUMSTANCES OF T HE CASE , T HE AO I S DIRECTED TO RESTRICT THE D I SALLOWANCE TO 25 % OF PURCHASES I . E. RS. 28 , 97 , 618/ - . AGGRIEVED BY THE ORDER OF LD.CIT(A), ASSESSEE AND REVENUE ARE NOW IN APPEAL BEFORE US. 7. BEFORE US, AT THE OUTSET, LD.A.R. SUBMITTED THAT ON IDEN TICAL FACTS IN THE CASE OF ASSESSEE FOR A.Y. 2010-11 THE CO-ORD INATE BENCH OF THE TRIBUNAL VIDE ORDER DT.15.10.2018 IN ITA NO.117/PN/20 16 HAS RESTRICTED THE ADDITION TO 10% OF HAWALA PURCHASES BY FOLLOWING THE ORDER OF TRIBUNAL IN THE LEAD CASE BEING OF CHHABI ELECTRICALS LTD., VS . DCIT AND OTHERS (IN ITA NO. 795/PUN/2014 FOR A.Y. 2010-1 1 DATED 28.04.2017). HE SUBMITTED THAT THE FACTS IN THE YEAR UNDER APPEAL ARE IDENTICAL TO THAT OF EARLIER YEAR AND THEREFORE, FOLLOWING THE SAME REASONING, THE APPEAL OF THE ASSESSEE MAY BE DECIDED IN T HE SAME 6 MANNER. LD.D.R. ON THE OTHER HAND, DID NOT CONTROVERT TH E SUBMISSIONS MADE BY LD.A.R. BUT HOWEVER SUPPORTED THE ORDER OF AO. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPEC T TO ADDITION ON ACCOUNT OF BOGUS PURCHASES. WE FIND THAT LD.CIT(A) WHILE GR ANTING PARTIAL RELIEF TO THE ASSESSEE HAS NOTED THAT AO HAD NOT BROUGHT ON RECORD ANY MATERIAL TO PROVE THAT THE PURCHASES WERE BOGUS EXCEPT RELYING ON THE INFORMATION RECEIVING FROM THE SALES TAX DEP ARTMENT. SHE HAS FURTHER NOTED THAT SINCE THE SUPPLIES HAVE BEEN MADE TO MSEDCL, NASHIK AND HAVE NOT BEEN QUESTIONED BY THE A O IN ITS ASSESSMENT, IT IS QUIET LIKELY THAT ASSESSEE HAS PROCURED THE GOOD FROM SOMEWHERE ELSE MAY BE AT THE OPEN MARKETS AND O BTAINED ACCOMMODATION BILLS FROM THE ALLEGED HAWALA SUPPLIERS. SHE FU RTHER NOTED THAT SINCE THE AO HAS NOT DOUBTED THE SALES, TH E ENTIRE PURCHASES CANNOT BE SAID AS BOGUS. SHE ACCORDINGLY RES TRICTED THE DISALLOWANCE TO 25% OF ALLEGED BOGUS PURCHASES. WE FIND THA T ON IDENTICAL FACTS IN THE CASE OF ASSESSEE FOR A.Y. 2010-11, TH E CO-ORDINATE BENCH OF THE TRIBUNAL BY FOLLOWING THE DECISION IN THE CASE OF CHHABI ELECTRICALS (SUPRA) HAS RESTRICTED THE DISALLOW ANCE TO 10% OF THE HAWALA PURCHASES BY OBSERVING AS UNDER : 12. THE CASE OF ASSESSEE BEFORE US IS OTHERWISE TH AT IT HAD COOPERATED AND FURNISHED ALL THE INFORMATION. OUR ATTENTION WA S DRAWN TO THE CONFIRMATION FILED OF THE SAID PARTY, WHICH IS PLAC ED AT PAGES 14 AND 15 OF PAPER BOOK, ALONG WITH COPY OF VAT REGISTRATION OF SUPPLIER AT PAGE 16 AND VAT RETURN AT PAGE 17 OF PAPER BOOK. AFTER G OING THROUGH THE PAPER BOOK, IT TRANSPIRES THAT ALL THIS INFORMATION WAS FILED ALONG WITH LETTER DATED 20.06.2013 I.E. BEFORE START OF RE-ASS ESSMENT PROCEEDINGS IN THE HANDS OF ASSESSEE, COPY OF ACCOUNT OF SAID P ARTY IS NOT EVEN DATED AND NO PAN IS AVAILABLE. THE LEARNED AUTHORIZ ED REPRESENTATIVE FOR THE ASSESSEE STATES THAT THE ASSESSEE HAS FILED ALL THE INFORMATION AND EVEN THE PAYMENT TO THE SAID PARTY WAS MADE THR OUGH BANKING CHANNEL AFTER A GAP OF TIME, HENCE THE PURCHASES SH OULD BE ACCEPTED AS GENUINE. THE SAID INFORMATION WAS FURNISHED BY THE ASSESSEE BUT IT WAS FURNISHED BEFORE RE-ASSESSMENT PROCEEDINGS WERE INITIATED AGAINST THE ASSESSEE. ANOTHER POINT TO BE KEPT IN MIND IS T HAT DURING THE COURSE 7 OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER IN ORDER TO VERIFY THE GENUINENESS OF PURCHASES HAD ISSUED NOTICE UNDER SE CTION 133(6) OF THE ACT, WHICH WAS RETURNED BACK BY POSTAL AUTHORITIES WITH REMARK NOT KNOW. THE ASSESSEE WAS THUS, CONFRONTED WITH THE S AID INFORMATION AND EVEN OPPORTUNITY WAS GIVEN TO THE ASSESSEE TO M AKE GOOD ITS CASE. WE HAVE ALREADY REFERRED TO VARIOUS QUERIES RAISED BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS VIDE LETTER DATED 10.04.2014. THE ASSESSEE HAS FAILED TO RESPOND TO T HE SAME AND UNDER SUCH CIRCUMSTANCES, WE FIND NO MERIT IN THE PLEA OF ASSESSEE THAT IT HAD ASKED FOR THE COPY OF STATEMENT AND HAD ALSO ASKED FOR CROSS- EXAMINATION OF WITNESSES, WHICH WAS NOT ALLOWED BY ASSESSING OFFICER, HENCE ADDITION CANNOT BE SUSTAINED IN THE HANDS OF ASSESSEE. ON THE OTHER HAND, THE ASSESSING OFFICER IN THE PRESENT CA SE HAS MADE ENQUIRIES, TRY TO SUMMON THE SUPPLIER M/S. SUNICO T RADERS PVT. LTD., ISSUED SHOW CAUSE NOTICE UNDER SECTION 133(6) OF TH E ACT BUT THE SAME COULD NOT BE SERVED UPON THE SUPPLIER AND IT WAS RE TURNED BY POSTAL AUTHORITIES. HERE, THE ONUS SHIFTS TO ASSESSEE, WHO HAS FAILED EVEN TO ACKNOWLEDGE VARIOUS NOTICES GIVEN BY ASSESSING OFFI CER DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND HAS FAILED TO EXPLAIN ITS CASE BEFORE THE ASSESSING OFFICER. IN SUCH CIRCUMSTANCES , MERE RELIANCE ON CONFIRMATION WHICH IS UNDATED, DOES NOT BEAR PAN NU MBER, CANNOT BE RELIED UPON. THE VAT REGISTRATION AND ACKNOWLEDGEME NT OF VAT RETURN DOES NOT PROVE THE CASE OF ASSESSEE SINCE THE SUPPL IER WAS REGISTERED UNDER THE VAT AND THAT IS WHY ENQUIRY WAS BY THE SA LES TAX DEPARTMENT. WHERE THE ASSESSEE HAS FAILED TO DISCHA RGE ONUS CAST UPON HIM, WE FIND NO MERIT IN THE PLEA OF ASSESSEE. THE ASSESSEE HAS FAILED EVEN TO ESTABLISH TRAIL OF GOODS AND HAS NOT EVEN PRODUCED OCTROI RECEIPTS, TRANSPORTATION RECEIPTS OF GOODS PURCHASE D FROM PARTY IN MUMBAI FOR SUPPLY TO THE ASSESSEES ADDRESS IN NASH IK. THE ASSESSEE HAS ALSO NOT FILED ANY QUANTITATIVE DETAILS OR STOC K REGISTER SHOWING CONSUMPTION OF MATERIAL PURCHASED AND BECAUSE OF NO NCOOPERATIVE ATTITUDE OF ASSESSEE BEFORE THE ASSESSING OFFICER, THERE IS NO MERIT IN THE PLEA OF ASSESSEE THAT NO ADDITION IS WARRANTED IN THE HANDS OF ASSESSEE. ONCE THE TRAIL OF GOODS HAS NOT BEEN ESTA BLISHED BY THE ASSESSEE, THEN ONUS UPON THE ASSESSEE HAS NOT BEEN DISCHARGED AND IN SUCH CIRCUMSTANCES, WE FIND NO MERIT IN THE PLEA OF ASSESSEE. WE HAVE ALREADY DECIDED SIMILAR ISSUE IN BUNCH OF APPE ALS WITH LEAD ORDER IN THE CASE OF ANITA SANJAY AGRAWAL VS. ITO IN ITA NOS.2622 TO 2624/PUN/2016, RELATING TO ASSESSMENT YEARS 2009-10 TO 2011-12, ORDER DATED 28.03.2018, WHEREIN THE ASSESSEE HAD ES TABLISHED THE TRAIL OF GOODS BUT THE ASSESSING OFFICER HAD FAILED TO PROVIDE CROSS- EXAMINATION TO THE ASSESSEE AND THE ADDITION WAS DE LETED IN THE HANDS OF ASSESSEE. HOWEVER, THE FACTS OF PRESENT CASE ARE AT VARIANCE, WHERE THE ASSESSEE HAS FAILED TO COOPERATE IN THE ASSESSM ENT PROCEEDINGS AND HAS ALSO FAILED TO ESTABLISH THE TRAIL OF GOODS , IN THE ABSENCE OF IT, THERE IS NO MERIT IN THE PLEA OF ASSESSEE. HOWEVER, WE HAVE RESTRICTED THE ADDITION TO 10% OF HAWALA PURCHASES IN BUNCH OF APPEALS WITH LEAD ORDER IN M/S. CHHABI ELECTRICALS PVT. LTD. VS. DCIT IN ITA NO.795/PUN/2014, RELATING TO ASSESSMENT YEAR 2010-1 1, ORDER DATED 28.04.2017. FOLLOWING THE SAME PARITY OF REASONING, WE DIRECT THE ASSESSING OFFICER ACCORDINGLY. THE GROUNDS OF APPEA L RAISED BY THE ASSESSEE ARE THUS, PARTLY ALLOWED. BEFORE US, SINCE BOTH THE PARTIES HAVE ADMITTED THAT THE FACTS IN THE YEAR UNDER CONSIDERATION ARE IDENTICAL TO THAT OF A.Y. 20 10-11, WE THEREFORE FOLLOWING THE SAME REASONING AS GIVEN BY CO-ORD INATE BENCH OF THE TRIBUNAL WHILE DECIDING THE APPEAL FOR A.Y. 2010-11 AN D FOR 8 SIMILAR REASONS, DIRECT THAT THE ADDITION BE RESTRICTED TO 10% OF THE HAWALA PURCHASES. THUS, THE GROUNDS OF THE ASSESSEE ARE PARTLY ALLOWED AND THAT OF THE REVENUE IS DISMISSED. 9. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALL OWED AND THAT OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON 1 ST DAY OF MARCH, 2019. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) ! / JUDICIAL MEMBER '! / ACCOUNTANT MEMBER PUNE; DATED : 1 ST MARCH, 2019. YAMINI #$%&'('% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3 . 4. 5. 6. CIT(A)-1, NASHIK. PR. CIT-1, NASHIK. '#$ %%&',) &', / DR, ITAT, B PUNE; $,-./ GUARD FILE. / BY ORDER , // TRUE COPY // /01%2&3 / SR. PRIVATE SECRETARY ) &', / ITAT, PUNE