The DCIT, Circle-1, Surat V. M/s. G.Tex Prints Pvt.Ltd., Surat

ITA 305/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6448 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 07-06-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 30-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: DIGANT NAIK ARS; RAJESH S DESAI
• Keywords: Bogus purchase; Principle of natural justice; Question of law; Difference of opinion; Reason to believe; Change of opinion
• Section: 133A; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'D' BEFORE SHRI MUKUL SHRAWAT,JM & SHRI A N PAHUJA,AM ITA NOS.305 & 306/AHD/2009 (ASSESSMENT YEARS:-2002-03 & 2003-04) DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1, ROOM NO.108, AAYAKAR BHAVAN, MAJURA GATE, SURAT V/S M/S G-TEX PRINTS PVT. LTD. PLOT NO. 254/255-A, GIDC PANDESARA, SURAT PAN: AABCG 7566 P [APPELLANT] [RESPONDENT] REVENUE BY :- SHRI B L YADAV, SR. DR ASSESSEE BY:- SHRI RAJESH S DESAI & SHRI DIGANT NAIK, ARS O R D E R A N PAHUJA: THESE TWO APPEALS BY THE REVENUE AGAINST TWO SEPARATE ORDERS DATED 25-11-2008 OF THE LD. CIT(APP EALS)-I, SURAT FOR THE ASSESSMENT YEARS 2002-03 & 2003-04,RAISE T HE FOLLOWING COMMON GROUNDS:- [1] ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A)-I, SURAT HAS ERRED IN DELETING THE ADDITION M ADE BY THE AO OF RS.17,55,560/- IN THE AY 2002-03 & RS.52,81,620/- IN THE AY 2003- 04 MADE BY THE AO ON ACCOUNT OF BOGUS PURCHASES FROM VARI OUS FICTITIOUS CONCERN OF ROHIT PANWALA GROUP, IGNORING THE MATERIAL EVIDENCES IN THE FORM OF STATEMENT OF OATH DEPOSED BY SH RI ROHIT PANWALA DURING THE COURSE OF SEARCH AT HIS RESIDENTIAL P REMISES WHEREIN HE HAD SPECIFICALLY ADMITTED THAT [A] HE HAS ISSUED BOGUS AND FAKE BILLS IN THE NAMES OF 45 BOGUS CONCERNS CREATED BY HIM, WITHOUT GIVING ACTUAL DELIVERY OF ANY PHYSICAL GOODS AND [B] THE AMOUNT OF CHEQUE RECEIVED FROM THE BUYERS OF BOG US BILLS WERE RETURNED TO THE BUYERS AFTER GETTING CHEQUES ENCASHE D IN THE BANK ACCOUNTS OF HIS BENAMI CONCERN AND RETURNED CASH TO BUYERS OF THE BOGUS BILLS AFTER DEDUCTING HIS COMMISSION THEREFROM. [2] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE L EARNED CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE AO ON THIS ISSUE. 2 ITA NOS.305 & 306/AHD/2009 2 [3I] IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE CIT(A) BE SET ASIDE AND THAT THE ORDER OF THE AO BE RESTORED. 2 ADVERTING FIRST TO GROUND NO.1 IN THESE TWO APPEA LS, FACTS, IN BRIEF, AS PER RELEVANT ORDERS FOR THE AY 2002-03 AR E THAT RETURN DECLARING INCOME OF RS.22,69,400/- WAS FILED ON 16. 4.2007 IN PURSUANCE TO A NOTICE DATED 19-03-2007 ISSUED U/S 148 OF THE INCOME-TAX ACT, 1961 [HEREINAFTER REFERRED TO AS TH E ACT] AND SERVED ON THE ASSESSEE ON 22-03-2007. THE FOLLOWIN G REASONS RECORDED BEFORE ISSUE OF NOTICE U/S 148 OF THE ACT WERE COMMUNICATED TO THE ASSESSEE ON 03-04-2007:- ' IN THIS CASE, A SURVEY U/S. 133A OF THE ACT WAS CARRIED OUT ON 23.02.2007 AT THE BUSINESS PREMISES OF THE ASSESSEE SITUATED AT 254/255, GIDC, PANDESARA, SURAT. 2. AS A RESULT OF SURVEY, IT WAS UNEARTHED THAT THE ASSESSE E WAS INDULGED INTO MAKING BOGUS PURCHASES FROM THE BOGUS CON CERNS CREATED BY SHRI ROHIT PANWALA. 3. IT IS GATHERED THAT A SEARCH AT THE RESIDENCE OF SHR I ROHIT PANWALA, STAYING AT A-904, SURYARTH APPT, NR. SWAMINARAYAN TEMPL E, ADAJAN, SURAT WAS CONDUCTED ON 26-07-2006 ALONG WITH SEARCHES CONDUCTED AT THE PREMISES OF COLOURTEX GROUP. SHRI ROHIT PANWALA IS ALLE GEDLY INVOLVED IN THE BUSINESS OF ISSUE OF BOGUS BILLS IN RESPECT OF COLOURS AND CHEMICALS. HE HAD FLOATED SEVERAL BENAMI CONCERNS FOR THIS PURPOSE I N THE NAME OF HIS RELATIVES AND HAD ISSUED BOGUS BILLS IN RESPECT OF COLO URS AND CHEMICALS TO VARIOUS DYEING HOUSES OF SURAT. HIS STATEMENT O N OATH WAS RECORDED IN THE INVESTIGATION WING. 4. THE SALIENT FEATURES OF THE STATEMENT ON OATH OF SH RI ROHIT PANWALA ARE AS FOLLOWS:- (I) SHRI ROHIT PANWALA IS AT PRESENT ENGAGED IN CHEQU E DISCOUNTING BUSINESS RUN IN THE NAME OF HIS OWN PROPRIETARY CONCERN, ABHI CORPORATION. (II) HE HAD, IN EARLIER YEARS BEEN ENGAGED IN THE BUSINESS OF ISSUING BOGUS BILLS IN RESPECT OF COLOUR CHEMICALS AND YARN IN THE N AMES OF VARIOUS CONCERNS FLOATED BY HIM IN THE NAMES OF HIS RELATIVE S AND HE WAS EARNING COMMISSION FROM THIS BUSINESS, WHICH RANGED FROM 0.15% TO 0.25% OF THE BILL AMOUNT. 3 ITA NOS.305 & 306/AHD/2009 3 (III) HE GAVE COMPLETE DETAILS OF SUCH BENAMI CONCERNS FLOATED B Y HIM INCLUDING NAME OF THE PROPRIETOR OF EACH CONCERNS, HIS RE LATIONSHIP WITH THE PROPRIETOR AND ALSO DETAILS OF THE BANK ACCOUN T OF EACH CONCERN. (IV) HE HAD NOT BEEN MAINTAINING DUPLICATE COPIES OF BI LLS BOOKS IN RESPECT OF BOGUS BILL ISSUED BY HIM AND HE ALSO HAD NOT MA INTAINED ANY BOOKS OF ACCOUNT IN RESPECT OF THE BUSINESS. (V) HE HAD NOT SUPPLIED THE GOODS AS PER THE BILLS ISSUED BY HIM FROM HIS BENAMI CONCERNS AND PAYMENTS RECEIVED AGAINST BILLS WE RE CREDITED TO THE BANK ACCOUNTS OF THE BOGUS CONCERNS. SUCH AMOUNTS WERE SUBSEQUENTLY WITHDRAWN BY HIM IN CASH AFTER CLEARANCE OF THE CHEQUES AND CASH WAS GIVEN BACK AFTER DEDUCTING HIS COMMISSIO N. (VI) HE GAVE A LIST OF 45 PROCESS / DYEING HOUSES OF SURAT TO WHOM SUCH BOGUS BILLS WERE GIVEN BY HIM. 4. AS A RESULT OF SURVEY U/S 133A OF THE ACT, IT HAS BEEN U NEARTHED THAT THE ASSESSEE HAS MADE BOGUS PURCHASES FROM BOGUS CONCERNS BELO NG TO SHRI ROHIT PANWALA AS UNDER:- (1) POOJA DYE CHEM. RS. 7,71,325 (2) SHREEJI TEX RS. 4,09,625 (3) SHREE TAPI TRADING CO. RS. 5,74,610 ---------------- TOTAL RS.17,55,560 5. THUS, THE ASSESSEE HAS CLAIMED BOGUS EXPENDITURE TO THE TUNE OF RS.17,55,560/- AND THEREBY CONCEALED INCOME TO THE EXTEN T OF RS.17,55,560/-. 6. IN VIEW OF THE ABOVE, I HAVE REASON TO BELIEVE THAT THE INCOME TO THE EXTENT OF RS.17,55,560/- HAS ESCAPED ASSESSMENT.' 2.1 THOUGH THE ASSESSEE ASKED FOR AN OPPORTUNIT Y FOR CROSS- EXAMINATION OF SHRI ROHIT PANWALA , HOWEVER, IT APP EARS THAT THE LATTER DID NOT APPEAR. AFTER CONSIDERING THE REPLY OF THE ASSESSEE IN RESPONSE TO A SHOW-CAUSE NOTICE DATED NOVEMBER 1, 2007, THE AO OBSERVED IN PARA 2.5 OF THE ASSESSMENT ORDER THAT T HE CONTENTION OF THE ASSESSEE THAT ALL THE RECORDS WERE MAINTAINED WAS NOT CORRE CT SINCE THE BASIC STORES KEEPING RECORDS WERE NOT AVAILABLE WITH THE ASSESSE N OR THE PURCHASES WERE VERIFIABLE, THE PARTIES FROM WHOM THE PURPORTE D PURCHASES WERE MADE BEING BENAMI CONCERNS OF SHRI ROHIT PANWALA, AS ADMITT ED BY HIM IN HIS 4 ITA NOS.305 & 306/AHD/2009 4 STATEMENT ON OATH ,WHEREIN HE CATEGORICALLY DEPOSED TH AT HE ISSUED FAKE SALES BILLS AND CHARGED COMMISSION WHILE AFTER DEPOSITING THE CHEQUES IN BANKS, THE AMOUNTS WERE WITHDRAWN IN CASH AND AFTER DEDUCTING COMMI SSION, HE USED TO RETURN THE CASH TO THE PURPORTED PURCHASERS. ACCORDINGLY , WHILE REFERRING TO THE DECISION OF THE LD. CIT(A)-1, SURAT, IN NAVNIDHI DY EING AND PRINTING MILLS PVT. LTD. FOR THE AY 2004-2005, THE AO ADDED AN AMOUNT OF RS.1 7,55,560/- ON ACCOUNT OF BOGUS PURCHASES. 2.2 LIKEWISE, AN AMOUNT OF RS. 52,81,620/- WAS ADDED ON ACCOUNT OF BOGUS PURCHASES IN THE AY 2003-04 IN TH E ASSESSMENT REOPENED U/S 147 OF THE ACT ,WHEN RETURN DECLARING INCOME OF RS.60,59,150/- WAS FILED. 3. ON APPEAL, THE LEARNED CIT(A) DELETED THE ADDITI ON IN THE AY 2002-03 IN THE FOLLOWING TERMS:- 2.2.1 DURING THE APPELLATE PROCEEDINGS, THE APPELLA NT REPEATED THE SUBMISSION MADE BEFORE THE A.O. AND CONTENDED THAT THE CROSS EXAMINATION OPPORTUNITIES WERE NOT GIVEN AND, THEREFOR E, THE STATEMENT OF SHRI ROHIT PANWALA CANNOT BE RELIED UPON. THE APPEL LANT ALSO RELIED ON THE DECISION OF THE HON'BLE I.T.A.T. AHMEDABAD IN THE CASE OF AKRUTI DYEING & PRINTING MILLS PVT. LTD. IN ITA NO.2551/AHD/2006 AND ITA NO.2752/AHD/2006, WHEREIN ON SIMILAR FACTS THE HON'BLE I.T.A.T. HAS DELETED THE DISALLOWANCE OF BOGUS PURCHASE IN RESPECT OF SHRI ROHIT PANWALA FIRMS. SINCE ONE OF THE CONTENTIONS OF THE APPE LLANT WAS THAT CROSS-EXAMINATION OF OPPORTUNITY WAS GIVEN, THE A.O. WAS A SKED TO SUBMIT HIS REMAND REPORT AFTER GIVING CROSS EXAMINATION OPPORTU NITY. THE A.O. HAS SUBMITTED HIS REMAND REPORT, VIDE HIS LETTER DATED 14.1 0.2008. IN THIS REMAND REPORT THE A.O. HAS STATED AS UNDER:- '1. IN THE CASE OF THE ABOVE ASSESSEE AS DIRECTED VIDE ABO VE REFERRED LETTER OPPORTUNITY WAS AFFORDED TO THE ASSESSEE TO CROSS -EXAMINE SHRI ROHIT PANWALA, THE STATEMENT OF SHRI ROHIT PANW ALA WAS RECORDED ON 13.10.2008. THE WITNESS WAS CROSS EXAMINED BY TH E AR OF THE ASSESSEE, 2. THE QUESTIONS PERTAINED TO THE AFFIRMING THE STAT EMENT OF THE ASSESSEE BEFORE THE INVESTIGATION WING RECORDED ON 01.08. 2006, 02.08.2006 AND 06.09.2008. (THE COPIES OF THE SAME WE RE HANDED OVER TO THE AR FOR PERUSAL). 5 ITA NOS.305 & 306/AHD/2009 5 3. THE NEXT QUESTION OF THE AR PERTAINED TO AFFIRMING THE FACT THAT IN AY 2002-2003 AND 2003-2004, SHRI ROHIT PANWALA HAD RECEIVED CHEQUE IN THE NAME OF VARIOUS FIRMS. 4. THE AR TRIED TO ESTABLISH IN THE QUESTION NO.4 THA T WHETHER SHRI ROHIT PANWALA HAS ANY PROOF OF THE SAME. THE ANSWER OF THE SAME WAS IN NEGATIVE BY THE WITNESS. 5. THE RE EXAMINATION WAS CONDUCTED AND THE WITNESS WAS ASKE D REGARDING THE MODUS OPERANDI ADOPTED BY HIM IN GENER AL. THE ASSESSEE CATEGORICALLY ADMITTED THAT HE HAS GIVEN THE BILL S TO THE ASSESSEE AND WITHDRAWN MONIES IN CASH AGAINST RECEIPT OF CROSSED/BEARER CHEQUE AND HANDED CASH BACK TO THE ASSESSEE A FTER DEDUCTING THE AGREED COMMISSION. 6. THE ISSUE OF ANY EVIDENCE, DOCUMENTARY OR OTHERWISE DOE S NOT ARISE, AS LONG AS SHRI ROHIT PANWALA, CONFIRMS HIS MODUS OPERAND/ OF PAYING CASH AGAINST CHEQUE AND INVOLVEMENT OF THE ASSESSE E WITH SHRI ROHIT PANWALA FOR ISSUING CHEQUE. 7. IT MAY KINDLY BE APPRECIATED THAT SHRI ROHIT PANWALA , WHO WAS RUNNING CONCERNS FOR ISSUING BOGUS BILLS ONLY, WAS NOT IN THE BUSINESS OF DELIVERY OF REAL GOODS AGAINST ALLEGED COMMISSIO N AND HENCE THE AMOUNT NEEDS TO BE CONFIRMED IN THE HANDS OF THE ASSESSEE.' 2.2.2 THE ABOVE REMAND REPORT OF THE A.O. WAS GIVEN TO THE APPELLANT FOR ITS COMMENTS. THE APPELLANT HAS FILED ITS SUBMISSION ON 21.11.2008 AND STATED THAT SHRI ROHIT PANWALA HAS IN HIS CROSS- EXAMINATION ADMITTED THAT THE APPELLANT HAD MADE PAYM ENT AGAINST PURCHASE BILLS AND THAT HE HAS NO EVIDENCE TO SUPPORT HI S CLAIM THAT HE HAD RETURNED THE CASH BACK TO THE APPELLANT. SHRI ROHIT PA NWALA ALSO CONFESSED THAT HE IS JUST THE OWNER OF THE ONLY ONE CONC ERN OUT OF THE 10 CONCERNS WHOSE TRANSACTIONS ARE ALSO CONSIDERED AS BOGUS ON TH E STRENGTH OF THE STATEMENT OF SHRI ROHIT PANWALA AND, THEREFORE, HIS STATEMENT IS NOT BINDING AND IS NOT LEGALLY VALID. THE APPELLANT FURTHER STATED THAT THE STATEMENT OF SHRI ROHIT PANWALA ON TH E BASIS OF WHICH THE ADDITION HAS BEEN MADE APPEARS TO BE UNRELIABLE AND CO NTRADICTORY BECAUSE IN ANSWER TO QUESTION NO.4 & 8, HE CONFESSED THAT HE IS THE OWNER OF M/S. ABHI CORPORATION ONLY WHILE ONE OF THE CONCERN NAMELY POOJA DYECHEM BELONGS TO RELATIVE WHEREAS IN RESPONSE TO LAST QUESTION HE STATED THAT HE WAS THE OWNER OF POOJA DYECHEM ONLY. IN ANSWER TO QUESTION NO. 12 & 13 OF THE STATEMENT TAKEN BY THE ADIT WING ON 01.08.2006 SHRI ROHIT PANWALA CONFESSED THAT HE DOES N OT HAVE ANY BOOKS OF ACCOUNT/BILLS WHICH MEANS THAT THE CONTENTION MADE BY HIM IS NOT SUPPORTED BY ANY EVIDENCE OR DOCUMENTS. THE APPELLANT ARGU ED THAT THE STATEMENT MADE BY SHRI ROHIT PANWALA WITHOUT ANY EVIDE NCE OR 6 ITA NOS.305 & 306/AHD/2009 6 DOCUMENTS AND CANNOT BE ACCEPTED AND HENCE NO ADDITION CAN BE MADE. THE APPELLANT FURTHER ARGUED THAT THE HON'BLE ITAT, AHMEDABAD HAS RECENTLY IN THE CASE OF SHALU DYG. & PTG. MILLS PVT. LTD. , ITA NO. 1491 & 1492/AHD/2008 DATED 11.07.2008 HAS DELETED THE ADDIT ION ON SIMILAR FACTS. IN VIEW OF THE ABOVE, THE APPELLANT STATED THAT THE AD DITION SHOULD BE DELETED. 2.3.1 I HAVE CONSIDERED THE SUBMISSION MADE BY THE APPELL ANT AND THE OBSERVATION OF THE A.O. FROM THE REASONS RECORDED, IT IS CLEAR THAT THIS IS NOT A CASE OF CHANGE OF OPINION AND THE INFORMATION CAME TO THE LIGHT CONSEQUENT TO THE SEARCH ACTION AT THE RESIDENCE OF SHRI ROHIT PANWALA THAT HE HAD ALLEGEDLY GIVEN BOGUS BILLS IN RESPECT OF COLO UR & CHEMICALS. THE APPELLANT HAD SHOWN PURCHASE FROM SHRI ROHIT PAN WALA FIRMS IN RESPECT OF WHICH HE STATED THAT HE HAD ONLY PROVIDED ACCOMM ODATION BILLS AND HE HAS NOT SOLD ANY MATERIAL. WITH REGARD TO THE I SSUE OF NOT ISSUING NOTICE U/S 143(2) IT IS STATED THAT IN THE CASE OF KIRA N NAGJI NISAR VS. ITO, (114-ITD-319) DATED 20.12.2006, THE HON'BLE ITAT, M UMBAI STATED THAT ISSUANCE OF NOTICE 143(2) IN THE CASE OF REOPENED ASSESSMENT IS NECESSARY. HOWEVER, IF THE PRINCIPLE OF NATURAL JUSTICE HA S BEEN OTHERWISE MET THEN THE ASSESSMENT IS NOT INVALID AND THE APPELLAT E AUTHORITY SHOULD DECIDE THE CASE ON MERIT. IN THE PRESENT CASE ALL THE IN GREDIENT HAS BEEN FOLLOWED AND, THEREFORE, THE REOPENING OF THE ASSESSMEN T IS IN ORDER AND THIS GROUND OF APPEAL IS DISMISSED. 2.3.2 WITH RESPECT TO THE DISALLOWANCE OF RS.17,55,560/ -, THE HON'BLE I.T.A.T. HAS CONSIDERED THIS ISSUE OF BOGUS PURCHAS E FROM THE FIRMS OF SHRI ROHIT PANWALA IN THE CASE OF AKRUTI DYG. & PTG. MILLS, ITA NO.2551/AHD/2006 AND NO.2752/AHD/2006 AS WELL AS IN T HE CASE OF SHALU DYG. & PTG. MILLS PVT. LTD., ITA NO.1491 & 1492/AHD/20 08, THE HON'BLE I.T.A.T., AHMEDABAD IN ITS ORDER DATED 11.07.2008 IN THE CASE OF SHALU DYG. & PTG. MILLS PVT. LTD. HAS DELETED THE DISALLOWANCE SAYING THAT THE REVENUE HAS BROUGHT NO MATERIAL ON RECORD TO SHOW THAT THE PURCHASE SHOWN BY THE ASSESSEE FROM THE PARTIES WERE NOT GENUINE A ND WERE ACCOMMODATION/FAKE BILLS. NO STATEMENT RECORDED FROM THE SELLER PARTIES BY THE REVENUE WAS BROUGHT ON RECORD. THE HON'BLE I.T. A.T. IN THIS ORDER HAS STATED AS UNDER:- '3. GROUND NO.2 IN BOTH THE APPEALS RELATES TO THE ADDITION ON ACCOUNT OF BOGUS PURCHASES AMOUNTING TO RS.2,71, 000/- IN A.Y. 2001-2002 AND RS.40,875/- IN AY 2002-2003. WE ARE TAKING THE FACTS RELATING TO AY 2001-2002 FOR DISPO SING OF BOTH THESE APPEALS. THE BRIEF FACTS OF THE CASE ARE THAT ON THE BASIS OF STATEMENT OF SHRI ROHIT PANWALA, THE AO MA DE THE ADDITIONS OF RS.2,71,000/- AND RS.40,875/- HOLDING THAT THE ASSESSEE HAS RECORDED THE BOGUS PURCHASES IN HIS BO OKS OF ACCOUNT IN RESPECT OF COLOUR AND CHEMICALS, ALTHOUG H THE PAYMENTS FOR THE SAME WERE MADE BY THE ASSESSEE THR OUGH ACCOUNT PAYEE CHEQUES AND NO EVIDENCE WAS BROUGHT O N 7 ITA NOS.305 & 306/AHD/2009 7 RECORD THAT THE ASSESSEE HAS RECEIVED BACK THE CASH FROM THE PARTIES. WHEN THE MATTER WENT IN APPEAL BEFORE THE CIT(A), THE CIT(A) ALSO CONFIRMED THE ADDITIONS. 4. BEFORE US, THE LEARNED AR RELIED ON THE ORDER OF THIS TRIBUNAL IN THE CASE OF AKRUTI DYEING & PRINTING MI LLS PVT. LTD. IN ITA NO.2551/AHD/2006 AND ITA NO.2752/ AHD/2006 I N WHICH VIDE ORDER DATED 26.10.2007 THIS TRIBUNAL HAS DELETED THE ADDITION ON ACCOUNT OF BOGUS PURCHASES MADE BY THE AO FOR THE PURCHASE OF COLOUR AND CHEMICALS FROM THE S AME PARTIES ABHI DYES ON THE BASIS OF THE STATEMENT OF SHRI ROHIT PANWALA AND IT WAS CONTENDED THAT THE FACTS INVOLVE D IN THE CASE OF THE ASSESSEE ARE SIMILAR. THE ASSESSEE HAD MADE PURCHASES BY MAKING THE PAYMENTS THROUGH ACCOUNT PA YEE CHEQUES AND AGAINST THE RECEIPT OF GOODS. OUR ATTEN TION WAS DRAWN TOWARDS PARA 20 OF THE ORDER OF THIS TRIBUNAL . THE LEARNED DR, ON THE OTHER HAND, SUPPORTED THE ORDER OF THE CIT(A) BY RELYING ON THE ORDER OF THE AO. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE MATERIAL ON RECORD ALONG WITH THE ORDER S OF THE TAX AUTHORITIES BELOW. WE FIND THAT THIS TRIBUNAL I N THE CASE OF AKRUTI DYEING & PRINTING MILLS PVT. LTD. IN ITA NO.2551/AHD/2006 AND ITA NO.2752/AHD/2006 VIDE ORDE R DATED 26.10.2007 WHILE DEALING WITH GROUND NO.3 REL ATING TO THE ADDITION ON ACCOUNT OF BOGUS PURCHASES IN RESPE CT OF COLOUR AND CHEMICALS MADE ON THE BASIS OF STATEMENT OF SHRI ROHIT PANWALA, HELD AS UNDER:- '20 HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RECORD WE FIND THAT A SEARCH OPERATION WAS CARRIED OUT ON SHRI ROHIT PANWALA AND HIS ASSOCIATES AND OTHER PROCEEDINGS WERE ALSO TAKEN AGAINST THEM WHEREIN SHRI ROHIT PANWALA STATED THAT HE USED TO PROVIDE ACCOMMODATION/FAKE BILLS AT THE REQUEST OF THE PARTIES. ON THE BASIS OF THIS, THE AO HAS TREATED THE PURCHASES MADE BY THE ASSESSEE FROM 3 PARTIES WHICH DO NOT INCLUDE ROHIT PANWALA FOR RS.7,21,950/- AS BOGUS. THE ASSESSEE CLAIMED THAT THE PAYMENTS TO THE PARTIES WERE MADE BY ACCOUNT PAYEE CHEQUES AND AGAINST RECEIPT OF GOODS. WE FIND THAT THE REVENUE HAS BROUGHT NO MATERIAL ON RECORD TO 8 ITA NOS.305 & 306/AHD/2009 8 SHOW THAT THE PURCHASES SHOWN BY THE ASSESSEE WV FROM THE AFORESAID 3 PARTIES WERE NOT GENUINE AND WHERE V ACCOMMODATION/FAKE BILLS SHOWN BY THE ASSESSEE. NO STATEMENT RECORDED FROM THE ABOVE 3 PARTIES BY THE REVENUE WERE BROUGHT ON RECORD. WE FIND NO MATERIAL ON THE BASIS OF WHICH IT CAN BE ALLEGED THAT THE ABOVE PARTIES ADMITTED THAT THE BILLS RAISED BY THEM AGAINST THE ASSESSEE WERE MERELY ACCOMMODATION BILLS. IN THE ABOVE CIRCUMSTANCES THE DISALLOWANCE MADE BY THE REVENUE ON THE BASIS OF SURMISES AND CONJECTURES WITHOUT ANY POSITIVE MATERIAL ON RECORD. THEREFORE, IN OUR CONSIDERED OPINION, THE DISALLOWANCE MADE IS UNSUSTAINABLE. ACCORDINGLY, WE DELETE THE ADDITION MADE AND ALLOW THE GROUND OF APPEAL OF THE ASSESSEE.' RESPECTFULLY FOLLOWING THE AFORESAID ORDER OF THE T RIBUNAL, WE DELETE THE ADDITIONS IN EACH OF THE ASSESSMENT YEAR S.' 2.3.3 IN VIEW OF ABOVE, IT IS CLEAR THAT THE FACTS OF TH E APPELLANT CASE ARE THE SAME AS IN THE CASE OF SHALU DYG. & PTG. MILL S PVT. LTD. AND, THEREFORE, THE DISALLOWANCE HAS TO BE DELETED. THE HON 'BLE I.T.A.T. STATED THAT THERE IS NO MATERIAL ON THE BASIS OF WHICH IT CAN B E ALLEGED THAT THE SELLER PARTIES ADMITTED THAT THE BILLS RAISED BY THEM AG AINST THE APPELLANT WERE MERELY ACCOMMODATION BILLS. IN VIEW OF THESE FACTS AND THE FACT THAT THE ASSESSEE HAS MADE PAYMENT THROUGH ACCOUNT PAYEE CHEQUE AND NO EVIDENCE WAS BROUGHT ON RECORD BY THE A.O. THAT THE ASSE SSEE HAS RECEIVED BACK THE CASH FROM THIS PARTY, THE HON'BLE I.T.A. T. DELETED THE DISALLOWANCE. THE FACTS ARE EXACTLY THE SAME IN THE PRESENT CASE AND HENCE DISALLOWANCE MADE BY THE A.O. IS DELETED. HENCE, THIS GROUND OF APPEAL IS ALLOWED. 4. ON SIMILAR LINES , THE LEARNED CIT(A) DELETED T HE ADDITION IN THE AY 2003-04. 5. THE REVENUE IS NOW IN APPEAL BEFORE US AGAINST T HE AFORESAID FINDINGS OF THE LEARNED CIT(A). THE LEARNED DR RELI ED UPON THE ORDER OF THE AO WHILE THE LD. AR ON BEHALF OF THE ASSESSE SUPPORTED THE FINDINGS OF THE LD. CIT(A) IN THE LIGHT OF FOLLOWI NG DECISIONS : 9 ITA NOS.305 & 306/AHD/2009 9 I. AKRUTI DYEING & PRINTING MILLS PVT. LTD. (ITA NO.2 551 & 2752/AHD/2006, ORDER DATED:26/10/2007) II. SHALU DYEING & PRINTING MILLS PVT. LTD. (ITA NO.1491 & 1492/AHD/2008, ORDER DATED: 11/07/2008) III. DADA SILK MILLS (ITA NO. 1896/AHD/2007 , ORDER DATED: 11/09/2008) IV. SANGITA M PATEL (ITA NO. 4320/AHD/200 7, ORDER DATED:29/02/2008) V. SUMAN SILK MILLS PVT. LTD. (ITA NOS. 3794 & 3894\AHD\2008, ORDER DATED: 16/12/2010). VI. AVISHKAAR PROCESSING MILLS (P) LTD. (IT A NO. 3589,3590 & 3591\AHD\2008, ORDER DATED: 03/07/2009) & (ITA NO.2687/AHD/2006, ORDER DATED:28/08/2009) 5.1 THE LD. AR FURTHER POINTED OUT THAT DECI SION OF THE ITAT IN AKRUTI DYEING & PRINTING MILLS PVT. LTD, HAS BEEN UPHELD BY THE HONBLE HIGH COURT VIDE THEIR ORDER DATED 28/10/2009 IN TAX APPEAL NO.1218 OF 2008 . 6. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE FACTS OF THE CASE. INDISPUTABLY, THE LD. CIT(A) FOLLOWED THE DECISION DATED 26/10/2007 OF THE ITAT, ADJUDICATING A SIMILAR ISS UE IN THE CASE OF AKRUTI DYEING & PRINTING MILLS PVT. LTD. IN ITA NO. 2551 & 2752/AHD/2006 AND DELETED THE ADDITION. THE SAID DE CISION IN AKRUTI DYEING & PRINTING MILLS PVT. LTD. WAS SUBSEQUENTLY FOLLOWED IN SHALU DYEING & PRINTING MILLS PVT. LTD.(SUPRA) ,DADA SILK MILLS (SUPRA),SANGITA M PATEL (SUPRA), AVISHKAAR PROCESSING MILLS (P) LTD.(SUPRA)AND SUMAN SILK MILLS PVT. LTD. (SUPRA) AND SIMILAR ADDITIONS WERE DELETED. IT MAY BE POINTED OUT THAT DECISION OF THE ITAT IN AKRUTI DYEING & PRINTING MILLS PVT. LTD. HAS BEEN UPHELD BY THE HONBLE HIGH COURT VIDE THEIR ORDER DATED 28/10/2009 IN TAX APPEAL NO.1218 OF 2008 WHEN IT WAS CONCLUD ED THAT NO SUBSTANTIAL QUESTION OF LAW AROSE AND THAT THE TRI BUNAL ON APPRECIATION OF THE FACTS DECIDED THE ISSUE CORRECT LY. IN THE LIGHT OF 10 ITA NOS.305 & 306/AHD/2009 10 CONSISTENT VIEW TAKEN IN THESE DECISIONS, ESPECIALL Y WHEN THE REVENUE HAVE NOT BROUGHT TO OUR NOTICE ANY CONTRARY DECISION NOR PLACED BEFORE US ANY MATERIAL SO AS TO ENABLE US TO TAKE A DIFFERENT VIEW IN THE MATTER, WE ARE NOT INCLINED TO INTERFER E. CONSEQUENTLY, GROUND NO.1 IN THESE TWO APPEALS IS DISMISSED. 7. GROUND NOS.2 AND 3 BEING MERE PRAYER NOR ANY SU BMISSIONS HAVING BEEN MADE ON THESE GROUNDS, DO NOT REQUIRE A NY SEPARATE ADJUDICATION AND ARE, THEREFORE, DISMISSED. 8. IN THE RESULT, BOTH THESE APPEALS ARE DISMISSE D. ORDER PRONOUNCED IN THE COURT TODAY ON 10-06-2011 SD/- SD/- ( MUKUL SHRAWAT ) JUDICIAL MEMBER ( A N PAHUJA ) ACCOUNTANT MEMBER DATED : 10-06-2011 COPY OF THE ORDER FORWARDED TO: 1. M/S G-TEX PRINTS PVT. LTD. PLOT NO. 254/255-A, G IDC PANDESARA, SURA 2. THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1, ROOM NO.108, AAYAKAR BHAVAN, MAJURA GATE, SURAT 3. CIT CONCERNED 4. CIT(A)-I, SURAT 5. DR, ITAT, AHMEDABAD BENCH-D, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABAD