DCIT 1(3)(1), MUMBAI V. R.R.OOMERBHOY PVT. LTD., MUMBAI

ITA 4223/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3625 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 08-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Assessee Lawyers: R R VORA
• Keywords: Bogus purchase; Unexplained expenditure; Business income; Charitable institution; Rule of consistency; Additional evidence
• Section: 69; 69C; 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI SANDEEP GOSAIN, JM ITA NO. 4223 /MUM/ 2017 (ASSESSMENT YEAR: 2012 - 13 ) DY. CIT - 1(3)(1) ROOM NO. 540, 5 TH FLOOR, AAYAKAR BHAWAN, M. K. ROAD, MUMBAI - 400 020 VS. M/S. R. R. OOMERBHOY PVT. LTD. F/5, SOONA MAHAL,143, MARINE DRIVE, VEER NARIMAN ROAD, MUMBAI - 400 020 PAN/GIR NO. AAACR 2364 M ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : SHRI CHAITANYA ANJARIA RESPONDENT BY : SHRI R. R. VORA DATE OF HEARING : 13.12.2018 DATE OF PRONOUNCEMENT : 20.02 .2019 O R D E R PER SHAMIM YAHYA, A. M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 3, MUMBAI (LD.CIT(A) FOR SHORT) DATED 27.03.2017 AND PERTAINS TO THE ASSESSMENT YEAR (A.Y.) 2012 - 13. 2. THE GROUNDS OF APPEAL READ AS UNDER: (I) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) ERRED IN DELETING THE ADDITION OF RS.9,99,50,211/ - ON ACCOUNT OF BOGUS AND NON GENUINE CLAIM OF PURCHASES TREATED AS UNEXPLAINED EXPENDITURE U/S 69C OF THE IT ACT. (II) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A), HAS ERRED IN IGNORING THE CONTENTION IN THE REMAND REPORT THAT COPY OF CONFIRMATIONS CLAIMED TO HAVE BEEN SUBMITTED BY OM INDUSTRIES ON 23/02/2015 AND ARIHANT ENTERPRISES ON 02/03/2015 WERE NOT AVAILABLE ON RECORDS. (III) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A), HAS ERRED IN IGNO RING THE CONTENTION IN THE REMAND REPORT THAT NO SUBMISSIONS HAVE BEEN MADE BY ASSESSEE AS REGARDS SUNDRY CREDITORS CHETNA OIL TRADING CO., SHRI SHYAM PRODUCTS AND BHAVANI SILICATE INDUSTRIES RELATING TO WHOM AMOUNT OF RS.3,45,23,014/ - , RS.26,19,800/ - AND RS.55,00,837/ - RESPECTIVELY HAD BEEN ADDED FOR THE REASON THAT REPLY WAS NOT RECEIVED FROM THE SAID SUNDRY CREDITORS IN RESPONSE TO NOTICE ISSUED U/S 133(6) TO VERIFY ITS TRANSACTIONS WITH THE ASSESSEE. 2 ITA NO. 4223/MUM/2017 (IV) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCE S OF THE CASE AND IN LAW THE LD.CIT(A), HAS ERRED IN IGNORING THE CONTENTION IN THE REMAND REPORT THAT THE ONLY SUBMISSION MADE AS ADDITIONAL EVIDENCE FILED DURING APPELLATE PROCEEDINGS IN RESPECT OF SUNDRY CREDITOR, YOGI INDUSTRIES WAS COPY OF THE RETURN OF INCOME WHICH WAS NOT SUFFICIENT COMPLIANCE CONSIDERING THAT THE ADDITION MADE IN RESPECT OF THE SAID PARTY AMOUNTING TO RS.1,66,31,513/ - WAS ON ACCOUNT OF NON RECEIPT OF REPLY IN RESPONSE TO NOTICE ISSUED U/S 133(6) ISSUED TO IT. (V) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW,, THE CIT(A) FAILED TO APPRECIATE THAT GENUINENESS OF THESE PARTIES IN ASSESSEE'S OWN CASE IN THE SUBSEQUENT ASSESSMENT YEARS 2013 - 14 AND 2014 - 15 WAS NOT EXAMINED PER SE AND FURTHER, IN ANY CASE AS EAC H YEAR IS INDEPENDENT, THE PRINCIPLE OF RES JUDICATA DOES NOT APPLY TO PROCEEDINGS UNDER THE INCOME TAX ACT. 3. BRIEF FACTS OF THE CASE IS THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF IMPORTED OLIVE OIL, PASTAS, SAUCES, SOAPS, AND PERFUMES, SELLING OF PACKAGED EDIBLE OIL. T HE ASSESSING OFFICER (A.O. FOR SHORT) HAS ISSUED NOTICE ON 10.02.2015 TO SUNDRY CREDITORS TO VERIFY THE GENUINENESS OF THE PARTIES FROM WHOM CERTAIN PURCHASES WERE MADE. SINCE NO RESPONSE WAS RECEIVED, HE PASSED THE ORDER ON 02.03.201 5 ADDING THE AMOUNT INVOLVED OF RS.9,95,50,211/ - AS UNEXPLAINED EXPENDITURE U/S. 69C OF THE ACT. THE A.O.S ORDER IN THIS REGARD READ AS UNDER: 6. FURTHER, THE NOTICES U/S 133(6) DATED 10.02.2015 WERE ISSUED TO THE FOLLOWING SUNDRY CREDITORS TO VERIFY THE GENUINENESS OF THE PARTIES FROM WHOM CERTAIN PURCHASES WERE MADE BY THE ASSESSEE FOR THE RELEVANT PERIOD. HOWEVER CERTAIN PARTIES EITHER DID NOT RESPOND OR REMAINED UNSERVED HENCE A SHOW CAUSE WAS ISSUED DATED 19.02.2015 TO THE ASSESSEE TO PRODUCE THESE P ARTIES 'PERSONALLY' ON OR BEFORE 27.02.2015 BEFORE THE UNDERSIGNED TO VERIFY ITS GENUINENESS. THE CONTENT OF THE SHOW CAUSE NOTICE IS AS FOLLOWS: SR NO NAME OF THE PARTY SECTION DATE OF ISSUE EXPECTED DATE OF REPLY PRESENT STATUS 1 M/ SHRI SHYAM PRODUCTS 133(6) 10.02.2015 19.02.2015 REPLY NOT RECEIVED. 2 M/S BHAWANI SILICATE INDUSTRIES 133(6) 10.02.2015 19.02.2015 REPLY NOT RECEIVED. 3 M/S VIKAS OIL PROTEINS 133(6) 10,02.2015 19.02.2015 REPLY NOT RECEIVED. 4 M/S YOGI INDUSTRIES 133(6) 10.02.2015 19.02.2015 REPLY NOT RECEIVED. 5 M/S R. P. INDIA OILS PUT LTD. 133(6) 10.02.2015 19.02.2015 REPLY NOT RECEIVED. 6 M/S OM INDUSTRIES 133(6) 10.02.2015 19.02.2015 REPLY NOT RECEIVED. 7 ARIHANT ENTERPRISES 133(6) 10.02.2015 19.02.2015 REPLY NOT RECEIVED. 8 M/S CHETNA OIL TRADING 133(6) 10.02.2015 19.02.2015 REPLY NOT RECEIVED. 9 M/S MARUTI PACKERS 133(6) 10.02.2015 19.02.2015 REPLY NOT RECEIVED. 3 ITA NO. 4223/MUM/2017 FURTHER, IN RESPONSE TO THE SHOW CAUSE NOTICES THE PARTIES/THE ASSESSEE SUBMITTED CERTAIN DOCUMENTS/EVIDENCES TO PROVE THE GENUINENESS OF THE ABOVE MENTIONED PARTIES. HOWEVER DESPITE THE SHOW CAUSE NOTICE DATED 19.02.2015 NEITHER THE PARTIES FROM WHOM THE PURCHASES WERE MADE NOR THE ASSESSEE COULD PROVE THE GENUINENESS OF THE TRANSACTION HELD BETWEEN THE PARTIES AND THE ASSESSEE. THE ONUS LIED UPON THE ASSESSEE COULD NOT BE DISCHARGED BY THE ASSESSEE IN A GIVEN TIME FRAME DESPITE THE OPPORTUNITY NOTICE ISSUED FROM THIS OFFICE. THE DETAILS OF THOSE PARTIES WHOSE GENUINENESS COUL D NOT BE PROVED AND WHICH STANDS UNEXPLAINED ARE AS BELOW: - SR NO. NAME OF THE PARTY SECTION DATE OF ISSUE AMOUNT INVOLVED PRESENT STATUS 1 M/ SHRI SHYAM PRODUCTS 133(6) 10.02.2015 26,19,800 REPLY NOT RECEIVED. 2 M/S BHAWANI SILICATE INDUSTRIES 133(6) 10.02.2015 44,00,837 REPLY NOT RECEIVED. 3 M/S VIKAS OIL PROTEINS 133(6) 10.02,2015 3,00,02,928 REPLY NOT RECEIVED. 4 M/S YOGI INDUSTRIES 133(6) 10.02.2015 1,66,31,513 RETURNED UNSERVED ON 20.02.2015 6 M/S OM INDUSTRIES 133(6) 10.02.2015 60,24,568 REPLY NOT RECEIVED 7 ARIHANT ENTERPRISES 133(6) 10.02.2015 19,36,884 RETURNED UNSERVED ON 23.02.2015 M/S CHETNA OIL TRADING 133(6) 10.02.2015 3,45,23,014 REPLY NOT RECEIVED. M/S MARUTI PACKERS 133(6) 10.02.2015 38,10,667 REPLY RECEIVED ON 27.02.2015 TOTAL AMOUNT INVOLVED - 9,99,50,211 IN VIEW OF THE ABOVE IT CAN BE INFERRED THAT THE ABOVE MENTIONED SUNDRY CREDITORS/PURCHASERS TO THE TUNE OF RS.9,99,50,211/ - ARE BOGUS AND NON GENUINE AND HENCE IS HEREBY TREATED AS UNEXPLAINED EXPENDITURE U/S 69C OF THE INCOME TAX ACT, 1961 AND ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE. 4. UPON THE ASSESSEES APPEAL, THE LD. CIT(A) NOTED THE ASSESSEES PLEA THAT A VERY SHORT NOTICE WAS GRANTED TO THE ASSESSEE BY THE A.O. THE ASSESSEE FILED ADDITIONAL EVIDENCES BEFORE THE LD. CIT(A). THE LD. CIT(A) NOTED THAT THE REMAND REPORT WAS OBTAINED FROM THE A.O., WHEREIN THE A.O. OBJECTED TO THE ACCEPTANCE OF ADDITIONAL EVIDENCE. THE LD . CIT(A) OVERRULED THE A.O. AND HELD THA T T H E ASSESSEE HAS SUBMITTED THE CONF IRMATION FROM THE PARTIES, THEIR LEDGER ACCOUNTS AND BANK STATEMENT S FOR PAYMENTS. HE DID NOT FIND ANY REASON NOT TO ACCEPT THE CONF IRMATION FROM THESE PARTIES. 4 ITA NO. 4223/MUM/2017 5. FURTHER, THE LD. CIT(A) REFERRED THAT FOR THE A.Y S . 2013 - 14 AND 2014 - 15 THE A.O. HAS ACCEPTED THE TRANSACTION WITH THESE PARTIES. THE ORDER OF THE LD. CIT(A) IS AS UNDER: 9.1 ON THE OTHER HAND, THE APPELLANT SUBMITTED THAT THE AO HAS NOT GIVEN SUFFICIENT TIME TO PROVE THE GENUINENESS OF THE CREDITORS FROM WHOM THE PURCHASES WERE MADE AND THEREBY SUBSTANTIATING THE EXPENDITURE. THE APPELLANT FILED ADDITIONAL EVIDENCES WHICH WERE FORWARDED TO THE AO FOR REMAND REPORT. THE AO HAS HELD THAT IN THE ADDITIONAL EVIDENCES THE APPELLANT HAS NOT PROVIDED ANY SUBMISSION IN RELATION TO THE VARIOUS PARTIES AND OF THE VIEW THAT THE CONFIRMATION IN THE FORM OF ADDITIONAL EVIDENCES ARE NOT RELIABLE IN HIS OPINION AND, THEREFORE, ADDITIONAL EVIDENCE UNDER RULE 46A MAY NOT BE ACCEPT ED. HE FURTHER SUBMITTED THAT EVEN IF THE ADDITIONAL EVIDENCE OF THE ASSESSEE IS ACCEPTED THEN ALSO THE ASSESSEE IS NOT ABLE TO PROVE THE GENUINENESS OF THE EXPENDITURE THE ASSESSEE THE ASSESSEE HAS MADE. HOWEVER, THE ISSUE MAY BE DECIDED ON MERITS. 9.2 I HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND THE FACTS OF THE CASE. THE AO HAS NOT BROUGHT ANY EVIDENCES ON RECORD TO SUBSTANTIATE ITS CLAIM THAT THE PURCHASES MADE FROM THE CREDITOR ARE NOT GENUINE. THE NON SUBMISSION OF CONFIRMATIONS WITHIN THE G IVEN TIME IS NOT THE GROUND TO DOUBT THE GENUINENESS OF THE TRANSACTIONS OF THE PARTIES. THE APPELLANT HAS SUBMITTED CONFIRMATIONS FROM THE PARTIES, THEIR LEDGER ACCOUNT AND THE BANK STATEMENTS FOR PAYMENTS. I DID NOT FUND ANY REASON NOT TO ACCEPT THE CONF IRMATIONS FROM THESE PARTIES. 9.3 FURTHER, IT IS INTERESTING TO NOTE THAT THE AO HAS ACCEPTED THE GENUINENESS OF THESE PARTIES IN THE APPELLANT'S OWN CASE IN THE SUBSEQUENT AY 2013 - 14 AND 2014 - 15. THEREFORE, KEEPING IN VIEW THE CONSISTENCY AND THE FACT TH AT THE APPELLANT HAS SUBMITTED NECESSARY CONFIRMATIONS TO PROVE THE GENUINENESS OF THE PARTIES, I DID NOT FIND ANY REASON NOT TO ACCEPT THE TRANSACTIONS AS GENUINE, IN VIEW OF THE SAME GROUND NO. 3 IS ALLOWED. 6. AGAINST THE ABOVE ORDER, THE REVENUE IS IN APPEAL BEFORE US. 7. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. WE HAVE ALSO GONE THROUGH THE PRECEDENTS RELIED UPON. THE LD. DEPARTMENTAL REPRESENTATIVE (LD. DR FOR SHORT) RELIED UPON THE ORDERS OF THE A.O. AND ALSO THE POINTS RAISED IN THE GROUNDS OF APPEAL. 8. PER CONTRA, THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT ALL THE NECESSARY DOCUMENTS AND CONFIRMATIONS WERE ALREADY PROVIDED BEFORE THE LD. CIT(A). HE SUBMITTED THAT THESE COULD NOT BE P ROVIDED TO THE A.O. AS VERY SHORT TIME WAS GRANTED. HE SUBMITTED THAT ALL THE ADDITIONAL EVIDENCES WERE REMANDED TO THE A.O. BY THE LD. CIT(A). THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT SINCE ALL THE NECESSARY DOCUMENTS WERE PROVIDED, THE ADDITIONS HA S BEEN RIGHTLY DELETED BY THE LD. C IT(A). IN THIS CONNECTION, THE LD. COUNSEL OF THE ASSESSEE GAVE THE PARTY - WISE DETAILS OF THE SUBMISSIONS. THE LD. COUNSEL 5 ITA NO. 4223/MUM/2017 OF THE ASSESSEE FURTHER REFERRED TO SEVERAL CASE LAWS FOR THE PREPOSITION THAT NON SERVICE OF THE NOTICE IS NOT A GROUND TO MAKE ADDITION FOR BOGUS PURCHASE. HE FURTHER REFERRED TO CERTAIN CASE LAWS FOR THE PROPOSITION THAT NO ADDITION CAN BE MADE U/S. 69 C OF THE ACT W HEN THE COPIES OF THE BANK STATEMENT AND LEDGER COPIES ARE FILED. HE FURTHER REFERRED TO SEVERAL CASE LAWS FOR THE PROPOSITION THAT WHERE THE A.O. HAS NOT MADE ANY ENQUIRY TO ASCERTAIN THE GENUINENESS OF THE TRANSACTION, NO ADDITION CAN BE MADE. LASTLY, THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT ON SIMILAR ISSUE , IN THE SUBSEQUENT YEA RS, NO DISALLOWANCE HAS BEEN MADE U/S. 69C OF THE ACT. HENCE, HE REFERRED TO SEVERAL CASE LAWS THAT NO ADDITION IN THE IMPUGNED A.O.S ORDER IS JUSTIFIED. 9. WE MAY GAINFULLY REFER TO THE SUBMISSIONS AND THE CASE LAWS REFERRED BY THE LD. COUNSEL OF THE A SSESSEE IN THIS REGARD AS UNDER: 5. DURING THE YEAR, THE A.O. HAD SENT THE NOTICE UNDER SECTION 133(6) TO FOLLOWING PARTIES FROM WHOM PURCHASES WERE MADE DURING THE YEAR. THE A.O. DISALLOWED THE TOTAL PURCHASES FROM THE FOLLOWING PARTIES TOTALING TO RS.9 ,99,50,171/ - SR NO NAME OF THE CREDITORS AMOUNT (IN RS) 1 SHRI SHYAM PRODUCTS 26,19,800 2 BHAWANI SILICATES INDUSTRIES 44,00,837 3 VIKAS OIL INDUSTRIES 3,00,02,928 4 YOGI INDUSTRIES 1,66,31,513 5 OM INDUSTRIES 60,24,568 6 ARIHANT ENTERPRISES 19,36,884 7 CHETNA OIL TRADING 3,45,23,014 8 MARUTI PACKERS 38,10,667 9 RP INDIA OIL PVT LTD NO ADDITION MADE TOTAL 9,99,50,211 IN VIEW OF THE ABOVE, WE WISH TO MAKE OUR SUBMISSIONS FOR EACH PARTY AS UNDER: 6. SHRI SHYAM PRODUCTS DURING THE COURSE OF ASSESSMENT PROCEEDING, THE PARTY HAD DIRECTLY REPLIED TO THE NOTICE UNDER SECTION 133(6) OF THE ACT TO THE AO, WHICH WAS ACKNOWLEDGED BY THE AO IN HIS REMAD REPORT. FURTHER, THE PARTY PROVIDED A COPY OF THE REGISTERED AD TO THE ASSESSEE WHIC H SUGGEST/ CONFIRMED THE CLAIM OF THE PARTY THAT REPLY WAS FILED. THE SAID COPY OF THE REGISTERED AD WAS SUBMITTED TO THE AO VIDE LETTER DATED 2 MARCH 2015 AND THUS THE OBSERVATION OF AO THAT NO REPLY WAS FILED WAS ERRONEOUS. (REFER PAGE 59 TO 60 OF THE PA PERBOOK) 6 ITA NO. 4223/MUM/2017 THE AO HAD ADDED THE PURCHASES MADE BY THE ASSESSEE FROM SHRI SHYAM PRODUCTS ON THE GROUND THAT THE GENUINENESS OF THE TRANSACTION WAS NOT PROVED EITHER BY THE ASSESSEE OR BY THE PARTY. FURTHER, THE AO IN THE REMAND REPORT HAS OBSERVED T HAT AS ON 31 MARCH 2012, THERE WAS NO BALANCE IN THE SUNDRY DEBTORS ACCOUNT IN THE BOOKS OF SHRI SHYAM PRODUCTS IN THE NAME OF THE ASSESSEE IN RESPECT OF PURCHASES MADE BY THE ASSESSEE. IN THIS REGARD, IT WAS SUBMITTED THAT SINCE ALL THE AMOUNTS WERE PAID, THERE WAS BE NO OUTSTANDING DEBIT BALANCE IN THE BOOKS OF SHRI SHYAM PRODUCTS. THE ASSESSEE HAD MADE THESE PAYMENTS FOR THE PURCHASES DURING YEAR AND SAME COULD BE VERIFIED FROM THE COPY OF LEDGER ACCOUNT FOR THE FY 2011 - 12 AND EXTRACTS OF BANK STATE MENTS (REFER PAGE 71 TO 80 OF THE PAPERBOOK) IN ADDITION TO ABOVE, ASSESSEE REQUESTED THE SUPPLIER TO SHARE THE DOCUMENTS WHICH WERE DIRECTLY SHARED TO THE OFFICE OF AO. IN THIS REGARD THE SUPPLIER HAD SHARED ONLY THE FORM VAT - 10 (REFER PAGE 61 TO 70 OF THE PAPERBOOK) SHOWCASING THE TOTAL SALES MADE DURING THE YEAR, TO PROVE THE GENUINENESS. THE OTHER DOCUMENTS FILED WERE HOWEVER NOT SHARED BEING CONFIDENTIAL IN NATURE BUT YOUR HONOURS WOULD ACKNOWLEDGE THE FACT THAT THE SAID DOCUMENTS WERE ON RECORD W ITH THE AO AS THEY WERE SUBMITTED BY THE PARTY DIRECTLY TO THE OFFICE OF THE AO. 7. BHAWANI SILICATE INDUSTRIES THE ASSESSEE PURCHASED MUSTARD OIL FROM THE BHAWANI SILICATE INDUSTRIES IN JAIPUR. A PERUSAL OF THE LEDGER ACCOUNT OF THE PARTY INDICATED THAT, THE OPENING BALANCE HAD BEEN PAID BY WAY OF BANK PAYMENTS. FURTHER, THE PURCHASES HAD BEEN MADE AT VARIOUS BRANCHES OF THE ASSESSEE (REFER PAGE 81 TO 86 OF THE PAPERBOOK) THE EXTRACT OF THE BANK STATEMENT SUGGEST THAT THE PAYMENTS HAVE ACTUALLY BEEN MADE BY THE ASSESSEE. {REFER PAGE 87 TO 106 OF THE PAPERBOOK) IN VIEW OF THE ABOVE, IT CAN BE CONCLUDED THAT AO HAS FAILED TO APPRECIATE THE FACT THAT ALL THE PAYMENTS WERE MADE THROUGH BANKING CHANNELS AND NO REASON ARISES FOR QUESTIONING THE GENUINENESS OF THE PARTY. THE CONTENTION OF DEPARTMENT THAT ADDITION SHOULD BE MADE ON ACCOUNT OF NON - RECEIPT OF REPLY FROM THE PARTY IS ERRONEOUS IN VIEW OF THE RECENT DECISION OF MUMBAI TRIBUNAL IN CASE OF FANCY WEAR VS ITO (167 ITD 621) WHEREIN IT HAS BEEN HELD THAT NO ADDITION CAN BE MADE MERELY BECAUSE OF NON - RECEIPT OF REPLY TO NOTICE ISSUED UNDER SECTION 133(6) OF THE ACT. 8. VIKAS OIL PROTEINS THE PARTY HAD PROVIDED A CONFIRMATION LETTER TO ASSESSE, WHEREIN THEY HAD CONFIRMED THAT PURCHASE S WERE MADE BY THE ASSESSEE AND STATING THAT ALL NECESSARY INFORMATION/ DOCUMENTS HAD BEEN FILED WITH THE AO. (REFER PAGE 109 TO 110 OF THE PAPERBOOK) THE LEDGER ACCOUNTS AND THE EXTRACT OF THE BANK STATEMENT SUGGESTED THAT THE PAYMENTS HAVE ACTUALLY BEEN MADE BY THE ASSESSEE. (REFER PAGE 111 TO 128 OF THE PAPERBOOK) FURTHER, A COPY OF THE REGISTERED AD OF THE REPLY BY THE PARTY TO THE OFFICE OF THE AO AS WELL AS CONFIRMATION LETTER BY THE PARTY WAS SUBMITTED. (REFER PAGE 107 TO 108 OF THE PAPERBOOK) HOWEVE R, THE AO HAD NOT PROVIDED ANY COMMENTS/ CONFIRMATION OF RECEIVING LETTER/ INFORMATION FROM THE PARTY IN THE REMAND REPORT. THEREBY THERE WAS NO JUSTIFICATION IN QUESTIONING THE GENUINENESS OF THE PARTY AND MAKING AN ADDITION WHEN THE PARTY HAD REPLIED TO THE NOTICE AS WELL AS SUBMITTED THE DOCUMENTS AS REQUIRED BY THE AO WITHIN THE DUE TIME. 9. YOGI INDUSTRIES YOGI INDUSTRIES HAD PROVIDED A CONFIRMATION LETTER DATED 23 FEBRUARY 2015 TO THE AO ALONG WITH A COPY OF RETURN OF INCOME ACKNOWLEDGEMENT STATI NG THAT THE ASSESSEE HAS MADE PURCHASES FROM YOGI INDUSTRIES THEREBY SHOWCASING THE GENUINENESS OF THE PARTY. (REFER PAGE 129 TO 134 OF THE PAPERBOOK) THE LEDGER ACCOUNTS AND THE EXTRACT OF THE BANK STATEMENT SUBSTANTIATING THE PURCHASES AND PAYMENTS HAVE ACTUALLY BEEN MADE BY THE ASSESSEE. (REFER PAGE 135 TO 150 OF THE PAPERBOOK) IN THIS REGARD, THE CONTENTION OF DEPARTMENT THAT SUBMISSION OF ONLY RETURN OF INCOME WAS NOT SUFFICIENT AND NON - RECEIPT OF REPLY TO NOTICE UNDER SECTION 133(6) OF THE ACT IS GROS SLY ERRONEOUS, AS THE REGISTERED AD AND REPLY LETTER BY THE PARTY DIRECTLY SUBMITTED TO THE AO CLEARLY SUGGESTED 7 ITA NO. 4223/MUM/2017 THAT THE NOTICE WAS DULY SERVED ON THE PARTY AND ALSO HAS BEEN COMPLIED WITH IN DUE TIME. ACCORDINGLY, THE CLAIM OF AO THAT THE NOTICE WAS UNSE RVED IS BASELESS. FURTHER, THE YOUR HONOURS WOULD APPRECIATE THE FACT THAT RETURN OF INCOME CAN BE FILED ONLY BY AN ENTITY HAVING A VALID PAN AND WOULD SUFFICE TO PROVE THE GENUINENESS OF THE PARTY ALONGWITH THE BANK STATEMENTS SHOWCASING PAYMENTS MADE THR OUGH AUTHORIZED CHANNEL AND HENCE THE CONTENTION OF THE DEPARTMENT TO REJECT THE PARTY ON THE GROUND THAT ONLY RETURN OF INCOME CANNOT SUFFICE TO PROVE GENUINENESS SHOULD NOT BE ALLOWED. 10. OM INDUSTRIES OM INDUSTRIES HAD PROVIDED A CONFIRMATION L ETTER TO THE ASSESSEE, CONFIRMING THAT PURCHASES WERE MADE BY THE ASSESSEE DURING FY 2011 - 12. FURTHER, THE SAID LETTER CONFIRMED THAT THE PARTY HAD PROVIDED ALL NECESSARY INFORMATION/ DOCUMENTS WITH THE AO ON 23 FEBRUARY 2015. THE AO IN HIS REMAND REP ORT HAD STATED THAT NO REPLY WAS AVAILABLE ON THE RECORDS. THE COPY OF REGISTERED AD AS WELL AS THE CONFIRMATION LETTER FROM THE PARTY CLEARLY QUASHES THE CLAIM OF THE AO OF NOT HAVING DOCUMENTS OF RECORD. {REFER PAGE 151 TO 152 OF THE PAPERBOOK) IN ADDITION TO THE ABOVE, THE LEDGER ACCOUNTS AND THE EXTRACT OF THE BANK STATEMENT INDICATES THAT THE PAYMENT FOR PURCHASES HAVE ACTUALLY BEEN MADE BY THE ASSESSEE. (REFER PAGE 153 TO 168 OF THE PAPERBOOK) 11. ARIHANT ENTERPRISES THE PARTY HAD PROVIDED A CONFIRMATION LETTER TO THE ASSESSEE, CONFIRMING THAT PURCHASES WERE MADE BY THE ASSESSEE. FURTHER, THE SAID LETTER CONFIRMED THAT THE PARTY HAD PROVIDED ALL NECESSARY INFORMATION/ DOCUMENTS WITH THE AO ON 2 MARCH 2015. (REFER PAGE 171 TO 172 OF THE PAPERBOOK) FURTHER, THE CONTENTION OF DEPARTMENT THAT NO SUBMISSION WAS AVAILABLE ON RECORD IS ERRONEOUS AS THE REGISTERED AD AND REPLY LETTER BY THE PARTY DIRECTLY SUBMITTED TO THE AO CLEARLY SUGGEST THAT THE NOTICE WAS DULY SE RVED ON THE PARTY AND ALSO HAS BEEN COMPLIED WITH IN DUE TIME. ACCORDINGLY, THE CLAIM OF AO THAT NO SUBMISSION WAS ON RECORD IS BASELESS. (REFER PAGE 169 TO 170 OF THE PAPERBOOK) THE LEDGER ACCOUNTS AND THE EXTRACT OF THE BANK STATEMENT SUBSTANTIATE T HAT THE PURCHASES AND PAYMENTS HAVE ACTUALLY BEEN MADE BY THE ASSESSEE. (REFER PAGE 173 TO 222 OF THE PAPERBOOK) 12. CHETNA OIL TRADING ( CORRECT NAME IS CHETNA TRADERS PVT LTD) THE ASSESSEE PURCHASED MUSTARD OIL FROM THE CHETNA OIL TRADING IN JAIPU R. A PERUSAL OF THE LEDGER ACCOUNT SUGGESTED THAT THE PURCHASES HAVE BEEN MADE AT VARIOUS BRANCHES OF THE ASSESSEE. THE PARTY HAD DIRECTLY SUBMITTED THE REPLY TO NOTICE UNDER SECTION 133(6) OF THE ACT TO THE AO. FURTHER, THE PARTY HAS CONFIRMED THAT T HE REPLY WAS MADE TO THE AO. FURTHER, A COPY OF THE REGISTERED AD, SUBSTANTIATING THE REPLY GIVEN BY THE PARTY IS ENCLOSED IN THE COMPILATION. (REFER PAGE 223 TO 224 OF THE PAPERBOOK) THE AO IN HIS REMAND REPORT HAD STATED THAT NO REPLY HAS BEEN RECEI VED FROM THE PARTY. THE FACT THAT THE PARTY HAS REPLIED TO THE AO BY WAY OF REGISTERED AD CLEARLY SUGGESTED THE CLAIM OF THE AO TO BE FALSE. THE LEDGER ACCOUNTS AND THE EXTRACT OF THE BANK STATEMENT SUBSTANTIATE THAT THE PURCHASES AND PAYMENTS HAVE AC TUALLY BEEN MADE BY THE ASSESSEE. (REFER PAGE 231 TO 268 OF THE PAPERBOOK) FURTHER, THE ASSESSEE HAD REQUESTED THE SUPPLIER TO SHARE THE DOCUMENT WHICH WERE DIRECTLY SHARED TO THE OFFICE OF AO. IN THIS REGARD THE SUPPLIER HAS SHARED THE FOLLOWING DOCUMENTS : COPY OF LETTER FILED WITH AO FOR INTIMATING SUBMISSIONS IN THE NAME OF CHETNA TRADERS PVT LTD (REFER PAGE 225 TO 226 OF THE PAPERBOOK) COPY OF CONFIRMATION I.E. LEDGER ACCOUNT OF ASSESSEE IN BOOKS OF CHETNA TRADERS PVT LTD. (REFER PAGE 227 TO 2 29 OF THE PAPERBOOK) COPY OF LETTER SENT BY AO UNDER SECTION 133(6} OF THE ACT (REFER PAGE 230 OF THE PAPERBOOK) COPY OF TRACKING DETAILS OF REPLY SUBMITTED BY CHETNA TRADERS PVT LTD TO AO (REFER PAGE 269 TO 270 OF THE PAPERBOOK) IN THIS REGARD, YOUR HONOURS WOULD APPRECIATE THAT ALL THE ABOVE DOCUMENTS FILED IN THE PAPER - BOOK WHICH WERE RECEIVED FROM THE SUPPLIER, ON ASSESSE'S REQUEST, WERE ALREADY AVAILABLE WITH THE AO DURING THE ASSESSMENT PROCEEDINGS. 13. MARUTI PACKERS 8 ITA NO. 4223/MUM/2017 MARUTI PACKERS HAS PROVIDED A CONFIRMATION LETTER CONFIRMING THAT PURCHASES WERE MADE BY THE ASSESSEE DURING FY 2011 - 12. FURTHER, THE SAID LETTER CONFIRMS THAT THE PARTY HAS PROVIDED ALL NECESSARY INFORMATION/ DOCUMENTS WITH THE AO ON 25 FEBRUARY 2015. (RE FER PAGE 271 TO 274 OF THE PAPERBOOK) AS REGARDS DISCREPANCIES MENTIONED IN THE REMAND REPORT BY THE AO, WE WISH TO SUBMIT AS UNDER; DURING THE YEAR, THE DETAILS OF THE TRANSACTION WITH MARUTI PACKERS IS AS UNDER, THE AFORESAID CAN BE VERIFIED FROM THE LED GER ACCOUNT ENCLOSED IN THE COMPILATION: PARTICULARS AMOUNT (RS) AMOUNT (RS) OPENING BALANCE ADD: PURCHASES 5% VAT ON PURCHASES MISCELLANEOUS RECEIPT 38,10,667 1,90,533 9,64,017 40,01,200 1,38,070 SUB - TOTAL 51,03,289 LESS: PAYMENTS MADE DURING THE YEAR 37,36,174 CLOSING BALANCE 13,67,115 IN THE REMAND REPORT, THE AO HAD ACCEPTED THE IN THE BOOKS OF MARUTI PACKERS, THE DEBIT BALANCE AS ON 31 MARCH 2012, FOR THE APPELLANT WAS RS 13,67,115. FURTHER, THE AO HAD STATED THAT AS PER LEDGER ACCOUNT OF THE APPELLANT IN THE BOOKS OF MARUTI PACKERS, THE SALES TO THE APPELLANT DURING THE RELEVANT YEAR AMOUNTED TO RS 40,01,202, WHICH TIES UP WITH THE PURCHASES RECORDED BY THE APPELLANT (IE PURCHASES RS 38,10,667 +VAT ON PURCHASES RS 1,90,533). FUR THER, THE EXTRACT OF THE BANK STATEMENT SUBSTANTIATE THAT THE PAYMENTS FOR PURCHASES HAVE ACTUALLY BEEN MADE BY THE ASSESSEE. (REFER PAGE 275 TO 334 OF THE PAPERBOOK) IN VIEW OF THE ABOVE DISCUSSIONS AND DOCUMENTS SUBMITTED, WE WISH TO SUBMIT THAT THE PAYM ENTS MADE WERE GENUINE PURCHASES AND THE CIT(A) WAS CORRECT IN DELETING THE ADDITION MADE BY AO UNDER SECTION 69C OF THE ACT WITHOUT BEING ABLE TO SUBSTANTIATE ITS CLAIM THAT THE PURCHASES WERE NOT GENUINE. 14. FURTHER, THE SUPPLIERS HAD PROVIDED THE DOCUMENTS/INFORMATION AS REQUIRED IN THE NOTICE ISSUED UNDER SECTION 133(6) OF THE ACT DIRECTLY TO THE OFFICE OF AO, AS THE SAME WERE CONFIDENTIAL IN NATURE. ON REQUEST OF THE ASSESSE, TWO PARTIES HAD GIVEN FEW DOCUMENTS TO THE ASSESSE WHICH WERE FILED DIR ECTLY WITH THE AO AND ARE SUBMITTED BEFORE YOUR HONOURS IN THE PAPERBOOK. 15. MOREOVER, THE ASSESSEE VIDE LETTER DATED 7 AUGUST 2015 HAD ALSO REQUESTED THE AO TO PROVIDE THE COPY OF THE REPLY FILED BY THE PARTIES. HOWEVER, THE AO REFUSED TO ACCEPT THE L ETTER AND PROVIDE A COPY OF THE REPLIES DIRECTLY FILED BY VARIOUS PARTIES. 16. ACCORDINGLY, THE ASSESSEE WAS UNABLE TO COMMENT UPON THE DETAILS DIRECTLY SUBMITTED BY THE PARTIES TO THE AO. ADDITIONAL EVIDENCE CAN BE FILED BEFORE THE CITFA) WHICH WAS NOT AVAILABLE AT TIME OF ASSESSMENT 17. THE AO IN THE REMAND REPORT HAD STATED THAT THE ASSESSE WAS NOT ENTITLED TO PRODUCE ADDITIONAL EVIDENCE BEFORE THE CIT(A) ON THE GROUND THAT SUFFICIENT OPPORTUNITIES WERE PROVIDED TO THE ASSESSE DURING THE ASSESSMENT PROCEEDINGS AND ADDITIONAL EVIDENCE COULD HAVE BEEN FILED DURING THE ASSESSMENT. HOWEVER, IT IS SUBMITTED THAT THE AO HAD ISSUED NOTICE UNDER SECTION 133(6) OF THE ACT ON 19 FEBRUARY 2015 AND HAD GIVEN ONLY 6 WORKING DAYS TO VERIFY THE GENUINENESS OF THE CLAIM. IN THIS REGARD, YOUR HONOURS WOULD APPRECIATE THE FACT THAT NO SUFFICIENT TIME WAS GIVEN TO THE ASSESSE TO COMPLY WITH THE NOTICE ISSUED AND HENCE ALL THE RELEVANT EVIDENCES WERE REQUIRED TO BE FILED DURING THE HEARING BEFORE CIT(A) AS ADDITIONAL EV IDENCES. - - 18. IN THIS REGARD, WE WISH TO PLACE RELIANCE ON THE DECISION OF HON'BLE BOMBAY HIGH COURT IN CASE OF PRABHAVATI SHAH (231 ITR 1) (REFER PAGE 357 TO 362 OF LEGAL PAPERBOOK) WHEREIN IT HAS BEEN HELD THAT WHERE THE APPELLANT WISHES TO SUPPOR T THE CLAIM MADE BEFORE THE HIGHER AUTHORITIES WITH THE EVIDENCE NOT AVAILABLE DURING THE TIME OF ASSESSMENT, CAN BE FILED IN FORM OF ADDITIONAL EVIDENCE BEFORE THE APPELLATE AUTHORITIES. THE CIT(A) NEED TO CONSIDER THE EVIDENCE IN LIGHT OF THE PROVISIONS OF SECTION 250. 9 ITA NO. 4223/MUM/2017 19. THUS, WE WISH TO SUBMIT THAT THE CONTENTION OF AO THAT ASSESSE CANNOT FILE ADDITIONAL EVIDENCE BEFORE THE CIT(A) ERRONEOUS, SINCE THE EVIDENCE SUBMITTED BEFORE THE CIT(A) WAS NOT AVAILABLE DURING THE TIME OF ASSESSMENT BUT WAS NECESSARY TO PROVE THE GENUINENESS OF THE PARTIES. NON - SERVICE OF NOTICE IS NOT GROUND TO MAKE ADDITION ON ACCOUNT OF BOGUS PURCHASES 20. THE ASSESSEE WISHES TO SUBMIT THAT THE AO IS NOT JUSTIFIED IN MAKING AN ADDITION UNDER SECTION 69C MERELY BECAUSE OF NON - REC EIPT OF REPLY IN RESPONSE TO NOTICE ISSUED UNDER SECTION 133(6) OF THE ACT AND RELIANCE IS PLACED ON THE DECISION OF MUMBAI TRIBUNAL IN CASE OF FANCY WEAR VS ITO (167 ITD 621) (REFER PAGE 363 TO 370 OF LEGAL PAPERBOOK). 21. FURTHER, THE JURISDICTIONAL HON'BLE BOMBAY HIGH COURT IN CASE OF NIKUNJ EXIMP ENTERPRISES (372 ITR 619) (REFER PAGE 371 TO 373 OF LEGAL PAPERBOOK), IT WAS HELD THAT MERELY BECAUSE SUPPLIERS HAD NOT APPEARED BEFORE AO PURCHASE COULD NOT BE TREATED AS BOGUS NO ADDITION WAS WARRANTED. 2 2. THE ABOVE DECISION WAS FOLLOWED IN CASE OF PRABHAT GUPTA (ITA 227/M/17) DATED 21 DECEMBER 2017 (REFER PAGE 374 TO 398 OF LEGAL PAPERBOOK)WHEREIN IT WAS HELD THAT NON - SERVICE OF NOTICE ISSUED UNDER SECTION 133(6) OF THE ACT WAS NOT A GROUND TO RAISE ADDITION OF BOGUS PURCHASES WHEN SUFFICIENT EVIDENCE WAS PROVIDED BY THE ASSESSE. NO ADDITION CAN BE MADE UNDER SECTION 69C OF THE ACT WHEN COPIES OF BANK STATEMENT AND LEDGER COPIES FILED 23. IN CASE OF SUDHA LOYALKA VS I TO (ITA 399 OF 2017)(DEL ITAT) DATED 18 JULY 2018 (REFER PAGE 399 TO 408 OF LEGAL PAPERBOOK)IT WAS HELD THAT DISALLOWANCE OF PURCHASES UNDER SECTION 69C OF THE ACT WAS NOT JUSTIFIED MERELY DUE TO NON - FILING OF CONFIRMATIONS FROM SUPPLIERS ESPECIALLY WHEN A SSESSEE HAD FILED CERTIFICATE FROM BANK INDICATING THAT THE CHEQUES ISSUED WERE CLEARED AND THERE WAS NO DEFECT IN ASSESSEE'S BOOKS OF ACCOUNTS. 24. FURTHER, KOLKATA TRIBUNAL IN CASE OF SELVEL ADVERTISING (P) LTD. (ITA NO.657/KOL/2013) DATED 1 JANUARY 2 015 (REFER PAGE 409 TO 430 OF LEGAL PAPERBOOK) IT WAS HELD THAT WHERE ENTIRE PURCHASES WAS MADE BY BILL AND SALES TAX WAS PAID THEREUPON AND PAYMENTS TO PARTY WERE MADE BY ACCOUNT PAYEE CHEQUES, ADDITION ON ACCOUNT OF BOGUS PURCHASES WAS NOT JUSTIFIED. 25. FURTHER, THE JURISDICTIONAL HON'BLE BOMBAY HIGH COURT IN CASE OF NIKUNJ EX IMP ENTERPRISES (372 ITR 619) (REFER PAGE 371 TO 373 OF LEGAL PAPERBOOK) IT WAS HELD THAT THAT IF PAYMENT WAS MADE THROUGH BANKS AND BOOKS OF ACCOUNTS OF ASSESSE WAS NOT REJECTE D NO ADDITION COULD BE MADE BY TREATING PURCHASES AS BOGUS. 26. FURTHER RELIANCE IS ALSO PLACED ON THE FOLLOWING DECISIONS WHEREIN IT HAS BEEN HELD THAT WHERE ASSESSEE HAD FILED LEDGER COPIES, BANK STATEMENTS ETC. TO ESTABLISH GENUINENESS FOR PURCHASES, AO WAS NOT JUSTIFIED IN DOUBTING THE SAID GENUINENESS AND MADE ADDITION UNDER SECTION 69C OF THE ACT. MAHESH K SHAH (184 TTJ 702)(MUM ITAT) (REFER PAGE 431 TO 437 OF LEGAL PAPERBOOK) CARAT LANE TRADING (P) LTD (ITA NO. 213 OF 2017)(CHENNAI ITAT) (REFER PAGE 438 TO 444 OF LEGAL PAPERBOOK) TEJUA ROHITKUMAR KAPADIA (256 TAXMAN 213) (SC) WHERE AO HAS NOT MADE ANY FURTHER ENQUIRY TO ASCERTAIN THE GENUINENESS OF TRANSACTIONS, NO ADDITION CAN BE MADE 27. THE ASSESSE WISHES TO SUBMIT THAT IN THE GIVEN CASE, THE AO HAS NOT MADE ANY INDEPENDENT ENQUIRY OR INVESTIGATION TO ASCERTAIN THE GENUINENESS OF THE PARTIES. THE AO HAS NOT BEEN ABLE TO SUBSTANTIATE ITS CLAIM THAT THE EVIDENCES SUBMITTED ARE NOT GENUINE AND SAID PURCHASES ARE BOGUS. 28. THE A O NEEDS TO CONDUCT AN INDEPENDENT ENQUIRY ONCE THE PRIMARY ONUS OF SUBMITTING ALL THE DETAILS WAS DISCHARGED BY THE ASSESSEE. IT IS UPON THE AO TO PROVE THAT THE PURCHASES WAS NOT GENUINE. 29. FURTHER IF THE AO HAD ACCEPTED THE SALES AND GROSS PROFIT R ATE IT MEANT THAT ASSESSE HAD MADE GENUINE PURCHASES FOR WHICH THERE WAS CORRESPONDING SALES AND HENCE NO ADDITION WOULD BE WARRANTED. 30. FOR THE ABOVE CONTENTIONS, WE WISH TO PLACE RELIANCE ON THE FOLLOWING DECISIONS: GEOLIFE ORGANICS VS ACIT (I TA 3699/MUM/2016) DATED 5 MAY 2017 (REFER PAGE 445 TO 457 OF LEGAL PAPERBOOK) EAGLE IMPEX (ITA 5697/M/10) (REFER PAGE 458 TO 471 OF LEGAL PAPERBOOK) 10 ITA NO. 4223/MUM/2017 SIMILAR ISSUE IN SUBSEQUENT YEARS WHERE NO DISALLOWANCE MADE UNDER SECTION 69C OF THE ACT 31. THE ASSESSE WISHES TO SUBMIT THAT THE AO FOR AY 2013 - 14 HAD ISSUED SIMILAR NOTICE UNDER SECTION 133(6) TO FEW PARTIES FROM WHOM ASSESSEE HAD MADE PURCHASES IN THE YEAR UNDER CONSIDERATION. SUBSEQUENT TO THE ISSUE OF NOTICE THE FOLLOWING PARTIES HAD REPLIED TO THE NOTICE ALONGWITH FOLLOWING DOCUMENTS: I. CHETNA TRADING PVT LTD (REFER PAGE 341 TO 344 OF THE PAPERBOOK) COPY OF LETTER SENT BY AO UNDER SECTION 133(6) OF THE ACT COPY OF REGISTERED AD COPY OF TRACKING DETAILS OF REPLY SUBMITTED BY CHETNA OIL TRADING TO AO II. MARUTI PACKERS (REFER PAGE 345 TO 346 OF THE PAPERBOOK) COPY OF LETTER SENT BY AO UNDER SECTION 133(6) OF THE ACT COPY OF REGISTERED AD III. YOGI INDUSTRIES (REFER PAGE 347 TO 352 OF THE PAPERBOOK) COPY OF LETTER SENT BY AO UNDER SECTION 133(6) OF THE ACT 32. HOWEVER, IT IS PERTINENT TO NOTE THAT THE AO IN ITS ASSESSMENT ORDER HAS NOT MADE ANY DISCUSSION/ADDITION WITH RESPECT TO THE SAID PURCHASES IN AY 2013 - 14 THEREBY ACCEPTING THE GENUINENE SS OF THE PARTIES, (REFER ORDER AT PAGE 335 TO 340 OF THE PAPERBOOK) 33. FURTHER, WE WISH TO SUBMIT THAT THE PRINCIPLE OF CONSISTENCY SHOULD BE FOLLOWED. IT IS TRUE THAT IN GENERAL, DOCTRINE OF 'RES JUDICATA 1 DOES NOT APPLY TO INCOME TAX PROCEEDINGS, BU T THE COURTS HAVE CONSISTENTLY HELD THAT ON IDENTICAL FACTS, SEPARATE CONCLUSIONS IN TWO DIFFERENT YEARS BY REVENUE AUTHORITIES IS NOT JUSTIFIED. 34. RELIANCE FOR THE SAME IS PLACED ON THE FOLLOWING DECISIONS WHEREIN IT WAS HELD THAT AS THE FACTS OF THE CASE REMAIN THE SAME THROUGH DIFFERENT ASSESSMENT YEARS, MODE OF ASSESSMENT CANNOT BE CHANGED WITHOUT REASONS IN VIEW OF THE PRINCIPLE OF CONSISTENCY AND ACCORDINGLY, NO DISALLOWANCE IS WARRANTED IN THE INSTANT YEAR: RADHA SAOMI SATSANG V CIT (193 IT R 321) (SC) (REFER PAGE 472 TO 489 OF LEGAL PAPERBOOK) CIT V BERGER PAINTS (266 ITR 99 (SC)) CIT V NEO POLY PACK (245 ITR 492 (DEL)) UOI V KUOMIDINI NARAYAN DALAI AND ANOTHER (249 ITR 219 (SC) UOI V SATISH PANNA LAL SHAH (249 ITR 221 (S C) CIT V J.K. CHARITABLE TRUST (308 ITR 161 (SC) (REFER PAGE 483 TO 489 OF LEGAL PAPERBOOK) 35. FURTHER, THE INCOME TAX DEPARTMENT FUNCTIONS AS ONE UNIT AND ITS STAND IS IDENTICAL MATTERS CANNOT BE DIFFERENT MERELY BECAUSE OFFICERS DEALING WITH THE TWO FILES ARE DIFFERENT. IN THIS REGARD RELIANCE IS PLACED ON THE DECISION OF JURISDICTIONAL BOMBAY HIGH COURT IN CASE OF DATTA MAHENDRA SHAH (378 ITR 304) (REFER PAGE 478 TO 489 OF LEGAL PAPERBOOK) PRAYER 36. IN VIEW OF THE ABOVE SUBMISSIONS AND VARI OUS JUDICIAL PRECEDENTS, WE REQUEST YOUR HONOURS TO UPHOLD THE ORDER OF CIT(A) AND DISMISS THE DEPARTMENT'S APPEAL. 10. UPON CAREFUL CONSIDERATION, WE FIND THAT THE ASSESSEE IN THIS CASE HAS SUBMITTED ALL THE NECESSARY EVIDENCES IN SUPPORT OF THE IMPUGNED TRANSACTIONS AND THE LD. CIT(A) HAS DRAWN A CORRECT CONCLUSION. IT IS CLEAR THAT THE A.O. HAS GIVEN AN EXTREMELY SHORT N OTICE, WHEREIN THE NOTICES COULD NOT BE RESPONDED. HOWEVER, ALL THE NECESSARY DETAILS WERE SUBSEQUENTLY AVAILABLE AND THE SAME WERE PROVIDED TO THE A.O. IN THE REMAND PROCEEDINGS. THE DETAILS HAVE ALSO BEEN MADE AVAILABLE TO US IN THE PAPER BOOK. FROM THE 11 ITA NO. 4223/MUM/2017 SAME, WE FIND THAT ALL THE NECESSARY CONFIRMATIONS OF THE TRANSACTIONS ARE AVAILABLE. ALL THE PAYMENTS ARE THROUGH BANKING CHANNELS. NO DISCREPANCY IN THIS REGARD IS NOTED. 11. WE FURTHER NOTE THAT THE OTHER PLANKS MADE BY THE LD. COUNSEL OF THE ASSESSEE ARE ALSO COGENT THAT THE ASSESSEE HAS PROVIDED THE COPIES OF THE BANK STATEMENTS FOR ALL THE ADDITIONS PROPOSED TO BE MADE U/S.69C OF THE ACT. HENCE, THE ADDITIONAL UNEXPLAINED EXPENDITURE AS MANDATED IN SECTION 69C IS NOT SUSTAINABLE , AS SECTION 69C PROV IDES THAT W HERE IN ANY FINANCIAL YEAR AN ASSESSEE HAS INCURRED ANY EXPENDITURE AND HE OFFERS NO EXPLANATION ABOUT THE SOURCE OF SUCH EXPENDITURE OR PART THEREOF, OR THE EXPLANATION, IF ANY, OFFERED BY HIM IS NOT, IN THE OPINION OF THE ASSESSING OFFICER, SA TISFACTORY, THE AMOUNT COVERED BY SUCH EXPENDITURE OR PART THEREOF, AS THE CASE MAY BE, MAY BE DEEMED TO BE THE INCOME OF THE ASSESSEE FOR SUCH FINANCIAL YEAR . IN THIS REGARD, WE NOTE THAT WHEN THE ASSESSEE HAS PROVIDED ALL THE EVIDENCES OF THE PAYMENT AND THE PAYMENTS ARE RECORDED IN THE BOOKS OF ACCOUNT, THEY ARE NOT LIABLE TO BE ADDED U/S. 69C OF THE ACT. FURTHERMORE, THE TRANSACTION FROM SOME OF THE PARTIES HAVE ALSO BEEN ACCEPTED IN THE SUBSEQUENT A SSESSMENT Y EAR. IT IS ALSO NOT THE CASE THAT ANY SALES CORRESPONDING TO THE PURCHASES /TRANSACTIONS HAS BEEN DISALLOWED OR DOUBTED. IN THESE CIRCUMSTANCES, IN THE BACKGROUND OF THE AFORESAID DISCUSSION AND PRECEDENT, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) AND ACCORDINGLY WE AFFIRM THE SAME . 12. IN THE RESULT, THIS APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 0 . 0 2 . 2 0 1 9 S D / - S D / - ( SANDEEP GOSAIN ) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 2 0 . 0 2 . 2 0 1 9 ROSHANI , SR. PS 12 ITA NO. 4223/MUM/2017 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT - CONCERNED 5. DR, ITAT, MUMBAI 6. GUARD FILE BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI