JHAVERI HATHISING GOPALJI & SONS, MUMBAI V. ITO WD 14(3)(2), MUMBAI

ITA 6141/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93023 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2008-2009
• Appeal Filed On: 21-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus purchase; Accommodation entries
• Section: 143(3); 133A; 131; 69; 148

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J MUMBAI . . , , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI N.K.BILLAIYA, ACCOUNTANT MEMBER . / ITA NO. 6141 & 6142/MUM/2013 / ASSESSMENT YEARS 2008-09 & 2009-10 M/S. JHAVERI HATHISING GOPALJI & SONS, 685, GOVIND CHOWK, M.J. MARKET, MUMBAI 400 002 / VS. THE INCOME TAX OFFICER, ITO WD-14(3)(2), MUMBAI. ! ./ ./ PAN/GIR NO. : AACFJ 6392G ( !$ / APPELLANT ) .. ( %&!$ / RESPONDENT ) . / ITA NO. 7338 & 7339/MUM/2013 / ASSESSMENT YEARS 2008-09 & 2009-10 THE INCOME TAX OFFICER, ITO WD-14(3)(2), MUMBAI. / VS. M/S. JHAVERI HATHISING GOPALJI & SONS, 685, GOVIND CHOWK, M.J. MARKET, MUMBAI 400 002 ! ./ ./ PAN/GIR NO. : AACFJ 6392G ( !$ / APPELLANT ) .. ( %&!$ / RESPONDENT ) ASSESSEE BY : SHRI BHUP ENDRA SHAH REVENUE BY : PAVANKUMAR BEERLA ( ) * / DATE OF HEARING : 23/06/2015 ( ) * / DATE OF PRONOUNCEMENT : 23/06/2015 ITA NO. 6141, 6142,7338&7339/MUM/2013 A.Y. 2008-09 AND 2009-2010 2 / O R D E R PER I.P.BANSAL, JM: THESE ARE CROSS APPEALS AND ARE DIRECTED AGAINST TWO SEPARATE ORDERS DATED 2/9/2013 PASSED BY LD. CIT(A)-25, MUMBAI FOR ASSESSMENT YEARS 2008- 09 AND 2009-10. 2. GROUNDS OF APPEAL FILED BY THE ASSESSEE IN RESP ECT OF BOTH THE YEARS READ AS UNDER: GROUNDS OF APPEAL FOR A.Y. 2008-09: 1. UNDER THE FACTS AND THE CIRCUMSTANCES OF THE C ASE OF YOUR APPELLANT, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION TO THE EXTENT OF 10% OF DISPUTED PURCHASE I.E. RS.59,202/- (ROUNDED OFF TO RS.1,14,910/-) OUT OF T HE TOTAL ADDITION OF RS.5,92,015/- MADE BY LD. AR AS UNEXPECTED / UNPROVED PURCHASE /INVESTMENT IN PURCHASE AS PER SECTION 69 OF THE INCOME TAX ACT, 1961. 2. YOUR APPELLANT, THEREFORE, PRAYS THAT THE ADDIT ION OF RS.1,14,910/- BE DELETED. GROUNDS OF APPEAL FOR A.Y. 2009-10.: 1. UNDER THE FACTS AND THE CIRCUMSTANCES OF THE C ASE OF YOUR APPELLANT, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION TO THE EXTENT OF OF 10% OF DISPUTED PURCHASE I.E. RS.59,202/- (ROUNDED OFF TO RS.1,14,910/-) OUT OF T HE TOTAL ADDITION OF RS.5,92,015/- MADE BY LD. AR AS UNEXPECTED / UNPROVED PURCHASE /INVESTMENT IN PURCHASE AS PER SECTION 69 OF THE INCOME TAX ACT, 1961. 2. YOUR APPELLANT, THEREFORE, PRAYS THAT THE ADDIT ION OF RS.1,14,910/- BE DELETED. 2.1 GROUNDS OF APPEAL FILED BY THE REVENUE IN BOTH THE YEARS ARE IDENTICAL READ AS UNDER: 1. THE LD.CIT(A) HAS ERRED IN LAW AS WELL AS ON FAC T BY NOT SUSTAINING ADDITION U/S 69 AFTER HAVING ACCEPTED THE FINDING IN PRINCIPLE THAT THE PURCHASES WERE MADE FROM UNDISCLOSED I UNVERIFIABLE I UNIDENTIFIABLE PARTIES IN THE GREY MARKET BY INVESTING IN CASH AND THE PURCHASES FROM THE GROUP CONCERNS OF SHRI R AKESH' GUPTA & FAMILY WERE ONLY ACCOMMODATION ENTRIES AND NOT ACTUAL PURCHASES. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD.CIT(A) AFTER HAVING ACCEPTED THE FACT THAT THE PURCHASES MADE FROM 0 THROUGH SHR I RAKESHKUMAR GUPTA AND HIS FAMILY MEMBERS ARE BOGUS, ERRED IN LAW IN NOT CONFIRMING T HE ADDITION AT LEAST TO THE EXTENT OF PEAK OF THE PURCHASES MADE FROM SUCH FROM SUCH PART IES ON ACCOUNT OF BOGUS PURCHASES MADE IN CASH FROM THE OPEN MARKET OUT OF UNACCOUNTE D CASH, IN VIEW OF THE DECISION HELD BY THE HON'BLE ITAT'S . C-BENCH, AHMEDABAD. IN THE CASE OF VIJAY PROTEINS LTD. ITA NO. 6141, 6142,7338&7339/MUM/2013 A.Y. 2008-09 AND 2009-2010 3 3. THESE APPEALS WERE FIXED FOR HEARING ON 22/6/201 5, WHEN IT WAS SUBMITTED BY LD. AR THAT THE ISSUES RAISED IN THESE APPEALS ARE IDENTICAL TO THE ISSUE DECIDED BY THE TRIBUNAL IN GROUP CASES OF THE ASSESSEE, WHEREIN IDENTICAL GROUNDS WERE RAISED AND THE ADDITION WAS DELETED. REFERENCE IN THIS REGARD WAS MADE TO THE ORDER OF THE TRIBUNAL IN THE ASSOCI ATE CONCERN OF THE ASSESSEE NAMELY M/S. NEETA TEXTILES IN RESPECT OF A.Y 2005-0 6, 2007-08 AND 2008-09. IT IS AN ORDER DATED 27/5/2015 IN ITA NOS.6138, 733 5, 6139, 7336, 6140 & 7337/MUM/2013. 4. IT WAS SUBMITTED BY LD. DR THAT HE WANTS TO GO T HROUGH THIS ORDER, THEREFORE, THE MATTER WAS ADJOURNED TO 23/06/2015. ON 23/06/2015, IT WAS SUBMITTED BY LD. DR THAT ISSUE RAISED IN THESE APPE ALS ARE COVERED BY THE AFOREMENTIONED ORDER OF THE TRIBUNAL, WHICH WAS ALS O FOLLOWED IN VARIOUS OTHER CASES. 5. FOR THE SAKE OF COMPLETENESS OF THE FACTS WHICH ARE IDENTICAL, WE REPRODUCE THE AFOREMENTIONED ORDER OF THE TRIBUNAL DATED 27/5/2005 AS UNDER: THE AFORESAID APPEALS HAVE BEEN FILED BY THE ASSESS EE AS WELL AS REVENUE AGAINST SEPARATE IMPUGNED ORDER OF EVEN DATE 02-09- 2013, PASSED BY THE LD. CIT(A)- 25, MUMBAI FOR QUANTUM OF ASSESSMENT PASSED U/S 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 FOR THE ASSESSMENT YEARS 2 005-06, 2007-08 AND 2008- 09. 2. SINCE COMMON ISSUES ARE INVOLVED IN ALL THESE A PPEALS, THEREFORE, THEY WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY WAY OF THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. FOR READY REFERENCE, THE C ROSS APPEALS FOR A.Y. 2005-06 IS BEING TAKEN UP AS LEAD APPEAL. 3. GROUNDS RAISED BY THE ASSESSEE FOR A.Y. 2005-06 READ AS UNDER:- 1. UNDER THE FACTS AND THE CIRCUMSTANCES OF THE CA SE OF YOUR APPELLANT, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION TO THE EXTENT OF 10% OF DISPUTED PURCHASES I.E. RS.1, 17,624/= ( ROUNDED OF F TO RS. 1,17,620/-) OUT OF THE TOTAL ADDITION OF RS.11,76,242/= MADE BY LD. A.O. AS ' UNEXEPTED/UNPROVED' PURCHASE/INVESTMENT IN PURCHASE AS PER SECTION 69 OF THE INCOME TAX ACT, 1961. ITA NO. 6141, 6142,7338&7339/MUM/2013 A.Y. 2008-09 AND 2009-2010 4 2. YOUR APPELLANT, THEREFORE, PRAYS THAT THE ADDITI ON OF RS.1,17,624/- SHOULD BE DELETED. WHEREAS GROUNDS RAISED BY THE REVENUE FOR A.Y. 200 5-06 READ AS UNDER:- THE LD.CIT(A) HAS ERRED IN LAW AS WELL AS ON FACT BY NOT SUSTAINING ADDITION U/S 69 AFTER HAVING ACCEPTED THE FINDING I N PRINCIPLE THAT THE PURCHASES WERE MADE FROM UNDISCLOSED/UNVERIFIABLE/U NIDENTIFIABLE PARTIES IN THE GREY MARKET BY INVESTING IN CASH AND THE PURCHASES FROM THE GROUP CONCERNS OF SHRI RAKESH GUPTA & FAMILY WERE O NLY ACCOMMODATION ENTRIES AND NOT ACTUAL PURCHASES. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD.CIT(A) AFTER HAVING ACCEPTED THE FACT THAT THE PURCHASES MADE FR OM 0 THROUGH SHRI RAKESHKUMAR GUPTA AND HIS FAMILY MEMBERS ARE BOGUS, ERRED IN LAW IN NOT CONFIRMING THE ADDITION AT LEAST TO THE EXTENT OF PEAK OF THE PURCHASES MADE FROM SUCH FROM SUCH PARTIES ON ACCOUNT OF BOGU S PURCHASES MADE IN CASH FROM THE OPEN MARKET OUT OF UNACCOUNTED CAS H, IN VIEW OF THE DECISION HELD BY THE HON'BLE ITAT'S C-BENCH, AHMEDA BAD, IN THE CASE OF VIJAY PROTEINS LTD. 4. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE , SHRI BHUPENDRA SHAH SUBMITTED THAT, SIMILAR ISSUE HAD COME UP FOR CONSI DERATION BEFORE THE TRIBUNAL IN SEVERAL CASES, SOME OF THEM OF BEING ITS SISTER CON CERN/GROUP CONCERNS, WHEREIN THE TRIBUNAL HAVE DECIDED THE ISSUE OF ALLEGED BOGU S PURCHASES IN FAVOUR OF THE ASSESSEE. IN SUPPORT, THE LD. COUNSEL FOR THE ASSES SEE FILED THE FOLLOWING DECISIONS:- (I) ITA NO. 3141/M/12, ITA NO. 3142/M/12, ITA NO. 4349/M/12, ITA NO. 3143/M/12, ITA NO. 4350/M/12, ITA NO. 3144/M/12 & 4 351/M/12 ORDER DATED 13-11-2013 IN THE CASE OF M/S JITENDRA HARSHADKUMAR VS. ACIT & VICE VERSA. (II) ITA NO. 3948 TO 3953/M/12, ITA NO. 4012 TO 40 15 TO 4021/M/12 ORDER DATED 01-10-2013 IN THE CASE OF PRAMIT TEXTIL ES VS. ITO & VICE VERSA. (III) ITA NO. 3960 TO 3967/M/12, ITA NO. 4022 TO 4 024/M/12, ITA NO. 4025/M/12 & ITA NOS. 3944,3955 AND 5065/M/12 IN THE CASE OF C. CHOTALAL & CO. VS. ITO AND VICE VERSA. 5. THE LD. D.R. HAS ALSO ADMITTED THAT THE FACTS AN D ISSUES INVOLVED IN THE PRESENT CASES ARE SIMILAR TO THE CASES DECIDED BY THE TRIBU NAL. 6. BRIEF FACTS OF THE CASE ARE THAT, THE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS AS DEALERS AND MERCHANT OF CLOTH MATER IALS. THE RETURN OF INCOME ITA NO. 6141, 6142,7338&7339/MUM/2013 A.Y. 2008-09 AND 2009-2010 5 WAS FILED ON 25-7-2005. IN THE CASE OF ONE OF THE S UPPLIERS OF THE ASSESSEE FIRM SHRI RAKESH KUMAR M. GUPTA (PROPRIETOR OF MANOJ MIL LS) AND GROUP CONCERNS, A SURVEY U/S 133 A OF THE ACT WAS CARRIED OUT ON 13/1 4- 2-2009. DURING THE COURSE OF SURVEY, IN THE STATEMENT RECORDED, SHRI RAKESH K UMAR M. GUPTA STATED THAT HE WAS PROVIDING ACCOMMODATION SALE BILL FOR THE PURCH ASES IN THE NAME OF THESE PROPRIETARY CONCERNS, SHRI RAKESHKUMAR M. GUPTA, PR OP. OF M/S MANOJ MILLS, SMT. HEMA R. GUPTA, PROP. OF M/S SHREE RAM SALES AND SYN THETICS AND SHRI MOHIT R. GUPTA, PROP. OF M/S ASTHA SILK INDUSTRIES AND OTHER FAMILY MEMBERS. LATER ON SHRI RAKESH KUMAR M. GUPTA RETRACTED THE STATEMENT IN A WRITTEN COMMUNICATION TO THE A.O. AND ALSO BY WAY OF SWORN AFFIDAVIT FILE D BY HIM AND HIS FAMILY MEMBERS WHO WERE PROPRIETORS OF SUCH CONCERN. THE C OPY OF HIS AFFIDAVIT IS APPEARING IN THE PAPER BOOK AT PAGE NO. 68 & 69. BA SED ON THE INFORMATION GATHERED DURING THE SURVEY OPERATION, THE ASSESSEE S CASE WAS REOPENED U/S 147 OF THE ACT BY ISSUING NOTICE DATED 26-2-2010 U/S 14 8 OF THE ACT. THE A.O., RELYING UPON THE STATEMENT OF SHRI RAKESH KR. M. GUPTA HELD THAT THE PURCHASES TO THE EXTENT OF RS. 20,10,972/- ARE BOGUS AND ARE MERELY ACCOMMODATION ENTRIES, THE SAME WAS ADDED U/S 69 OF THE ACT. THE LD. CIT(A) AF TER CONSIDERING THE VARIOUS SUBMISSIONS OF THE ASSESSEE, AS WELL AS THE DETAILS OF PURCHASES AND SALES HELD THAT 10% OF SUCH PURCHASES SHOULD BE ADDED. THE REL EVANT OBSERVATION AND FINDING OF LD. CIT(A) IS AS UNDER:- I HAVE PERUSED THE ASSESSMENT ORDER, REMAND REPORT , WRITTEN SUBMISSIONS OF APPELLANT, AND THE FACTS AND CIRCUMSTANCE OF THE CASE. ON PLAIN READING OF THE ASSESSMENT ORDER, I FIND THAT THE AO HAS BAS ICALLY RELIED ON THE STATEMENTS RECORDED OF SHRI RAKESHKUMAR M. GUPTA & OTHERS DURING THE COURSE OF SURVEY ACTION U/S 133A AND SUBSEQUENTLY R E-AFFIRMED ON OATH U/S 131 OF THE ACT, TO MAKE ADDITIONS IN HANDS OF P URCHASER PARTY I.E. THE APPELLANT IN THIS CASE. THE SAID ADDITIONS ARE MADE BASED ON DOCUMENTS IMPOUNDED DURING SURVEY PROCEEDINGS TO ARRIVE AT TO TAL PURCHASES MADE BY APPELLANT DURING THE YEAR AT RS. 20,10,972/-. HO WEVER, THE APPELLANT HAS SUBMITTED THE BREAK-UP OF ITS PURCHASES FROM GU PTA PARTY (RS. 11,76,242/- & NONGUPTA PARTY (RS. 11,71,970/-) AGGR EGATING TO RS. 23,48,212/-, WHICH FIGURE ALSO TALLIES WITH THE PUR CHASE FIGURE SHOWN IN ITS P&L ACCOUNT. FURTHER, THE APPELLANT HAS SUBMITTED L EDGER STATEMENT OF GUPTA PARTY (M/S ASTHA SILK INDUSTRIES) IN ITS BOOK S SHOWING TOTAL PURCHASES AT RS. 11,76,242/-. IN THESE CIRCUMSTANCE S, EVEN ASSUMING THE ENTIRE PURCHASES FROM GUPTA PARTY IS TO BE TREATED AS BOGUS, THE ADDITIONS ON THAT ACCOUNT CANNOT EXCEED RS. 11,76,242/-. 6.1 FURTHER OBSERVE THAT THE APPELLANT HAS NOT MAI NTAINED THE STOCK REGISTER. HOWEVER, SINCE IT HAS SHOWN SALES OF RS. 25.44 LAKHS, AS AGAINST PURCHASES OF RS. 23.48 LAKHS IN ITS P&L ACCOUNT, IT HAS TO BE ACCEPTED THAT THERE CAN BE NO SALES WITHOUT CORRESPONDING PURCHAS ES, AND WHEN THE SALE OF APPELLANT IS NOT ITA 6138/M/13, ITA 7335/M/13, I TA 6139/M/13, ITA 7336/M/13, ITA 6140/M/13 & ITA 7337/M/13 6 DISPUTED , THE ADDITIONS OF ENTIRE ALLEGED PURCHASES IS ALSO NOT JUSTIFIED. 6.2 A LOGICAL CONCLUSION WHICH MAY BE DRAWN IN SUC H SITUATION IS THAT THE APPELLANT HAS RECORDED SOME SALES IN ITS BOOKS OF A CCOUNTS WHICH MATERIALS MIGHT HAVE BEEN PURCHASED BY IT IN GREY M ARKET WITHOUT BILLS, AND TO REGULARIZE SUCH PURCHASES IN GREY MARKET, TH E APPELLANT MIGHT HAVE ITA NO. 6141, 6142,7338&7339/MUM/2013 A.Y. 2008-09 AND 2009-2010 6 TAKEN ACCOMMODATION BILLS FROM THE SAID PARTIES FOR PURCHASE OF SPECIFIED MATERIAL. THE AO HAS NOT DENIED SUCH POSSIBILITY BY QUOTING THE WORDS 'HAWALA PURCHASES/ OR TO ACCOMMODATE THE PURCHASES MADE OUT OF THE BOOKS' IN PARA 17 OF THE ASSESSMENT ORDER. IN THESE CIRCUMSTANCES, THE ADDITIONS CAN ONLY BE MADE AT CERTAIN PERCENTAGE OF GP/ NP OR AT AN ADHOC AMOUNT, IN CONSONANCE WITH THE APPELLATE ORDERS OF VARIOUS CITS(A) IN CASES OF PURCHASES FROM MR. RAKESHKUMAR GUPTA, THE COPIES OF WHICH ARE SUBMITTED BY THE APPELLANT. 6.3 LOOKING AT THE FACTS AND CIRCUMSTANCES OF THE CASE AS A WHOLE, I AM OF THE CONSIDERED VIEW THAT THE CAUSE OF JUSTICE WOULD BE MET BY MAKING ADDITION AT 10% OF SUCH PURCHASES IN ORDER TO FILL IN THE GAP OF DIFFERENCE OF GP IN RECORDING THE SAID PURCHASES AS WELL TO PLUG ANY LEAKAGE OF REVENUE. THE AO HAS MADE ADDITIONS OF ALLEGED PURCHASES FROM GUPTA PARTY AT RS. 20,10,972/-, HOWEVER AS DISCUSSED ABOVE, THE SAID P URCHASES ARE ACCEPTED AT RS. 11,76,242/-. HENCE, THE ADDITIONS I S RESTRICTED TO 10% OF SAID PURCHASES OF RS. 11,76,242/- I.E. RS. OF RS. 1 ,17,624/- AND THE BALANCE ADDITION OF RS. 18,93,348/- (I.E. 20,10,972 /- - 1,17,624/- IS DELETED. 7. AGAINST THIS, BOTH ASSESSEE AS WELL AS REVENUE HAVE PREFERRED THESE APPEALS BEFORE US. 8. AFTER CONSIDERING THE IMPUGNED ORDER AS WELL AS THE ORDER OF THE TRIBUNAL IN OTHER CASES AND THE MATERIAL PLACED ON RECORD, WE F IND THAT FIRST OF ALL, SHRI RAKESH KUMAR M. GUPTA HAS RETRACTED HIS STATEMENT B EFORE THE A.O. AND ALSO FILED AFFIDAVIT ADMITTING THAT SALES MADE TO THE AS SESSEE ARE GENUINE. THE ASSESSEE HAS ALSO PRODUCED EVIDENCES LIKE COPY OF C ONFIRMED LEDGER ACCOUNT, COPY OF BANK STATEMENT SHOWING THE PAYMENT MADE FOR THE PURCHASES AND SALE BILLS. ALL THESE DOCUMENTS HAVE BEEN PLACED IN THE PAPER BOOK BEFORE US. THE ASSESSEES CASE HAD BEEN THAT NO ADVERSE INFERENCE SHOULD BE DRAWN ON THE BASIS OF STATEMENT RECORDED WITHOUT REFERENCE TO TH E ASSESSEE. NO FURTHER ENQUIRY WAS CARRIED OUT IN THE CASE OF THE ASSESSEE OR SHRI RAKESH KUMAR M. GUPTA DESPITE THE FACT THAT STATEMENT WAS SUBSEQUENTLY RE TRACTED BY HIM. WE FIND THAT EXACTLY SIMILAR ISSUE ON SIMILAR SET OF FACTS HAD C OME UP FOR CONSIDERATION BEFORE THE TRIBUNAL IN THE AFORESAID CASES AS CITED BY THE LD. COUNSEL FOR THE ASSESSEE. IN THE CASE OF M/S JITENDRA HARSHADKUMAR & COMPANY (SUPRA), THE TRIBUNAL AFTER RECORDING THE ENTIRE FACTS OF THE CASE AND EVIDENCE S, DELETED THE ENTIRE ADDITIONS MADE BY THE A.O. FOR THE SAKE OF READY REFERENCE, T HE RELEVANT PORTION OF THE DECISION OF M/S HARSHADKUMAR & COMPANY IS REPRODUCE D HEREUNDER:- 7. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES A ND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERV ED THAT A SIMILAR ISSUE INVOLVING IDENTICAL FACTS HAS ALREADY BEEN CONSIDER ED AND DECIDED IN FAVOUR OF THE ASSESSEE BY THE MUMBAI I BENCH OF T HIS TRIBUNAL IN THE CASE OF JEETENDRA HARSHADKUMAR TEXTILES (ITA NO. 77 1 & 2211/MUM/2011 DATED 21-11-2012) VIDE PARA 8 & 8.1 W HICH READ AS UNDER:- 8. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS IN THE LIGHT OF MATERIAL PLACED BEFORE US. IT WILL BE RELEVANT T O REPRODUCE THE LETTER RECEIVED BY THE AO FROM SHRI RAKESH KUMAR GUPTA, WH ICH IS ALSO ITA NO. 6141, 6142,7338&7339/MUM/2013 A.Y. 2008-09 AND 2009-2010 7 REPRODUCED IN THE ASSESSMENT ORDER: 1 AM IN RECEIP T OF YOUR SUMMONS U/S. 131 OF THE I.T.ACT. 1961 IN THE CASE OF M/S. J ITENDRA HARSHAD KUMAR TEXTILE PVT. LTD. ASKING ME TO ATTEND BEFORE YOUR G OODSELF WITH THE DETAILS OF MY ACCOUNT WITH THE SAID M/S. JITENDRA HARSHAD K UMAR TEXTILE PVT. LTD. FOR A.Y.2002-03 & 2007-08. AS YOU ARE AWARE THAT MY ASSESSING OFFICER HAD RECORDED ALLEGED STATEMENT U/S. 133A AND 131 OF THE I.T.ACT. 1961 1 HAVE BEEN RECEIVING WITNESS SUMMONS FROM ALL FOUR C ORNERS OF THE CITY ON THE GROUND THAT I HAVE GIVEN ACCOMMODATION BILL, TH OUGH I HAVE DENIED THE CONTENT OF THE STATEMENTS RECORDED BY A.O. U/S. 133 A & 131 VIDE MY LETTER DATED 27.4.2009 AND MY AFFIDAVIT DATED 20.2.2009 SU BMITTED TO WARD 14(3)(2). IT IS PHYSICALLY IMPOSSIBLE FOR ME TO ATT END BEFORE VARIOUS INCOME TAX AUTHORITIES, AS I AM NOT FEELING WELL, IT WILL NOT POSSIBLE FOR ME TO ATTEND BEFORE YOUR GOODSEIF IN RESPONSE TO YOUR ABOVE MENT IONED SUMMONS. AS REGARDS M/S. JITENDRA HARSHAD KUMAR TEXTILES PVT. L TD. IS CONCERNED. I HAVE ALREADY GIVEN MY AFFIDAVIT WHEREIN I HAVE SPEC IFICALLY STATED THAT I HAVE SOLD THE GOODS TO M/S. JITENDRA HARSHAD KUMAR TEXTILES P. LTD. AND THE CONSIDERATION IS RECEIVED TO ME BY CROSS ORDER CHEQUE. COPY OF THE SAID LEDGER ACCOUNT IS ALREADY SUBMITTED THE DEPARTMENT. 8.1 FROM THE ABOVE LETTER IT IS CLEAR THAT THE SAM E WAS WRITTEN IN RESPONSE TO NOTICE ISSUED BY THE AO. NOT ONLY SHRI RAKESH KU MAR GUPTA HAS STATED THAT HE HAS RETRACTED FROM THE STATEMENT RECORDED D URING THE SURVEY BUT ALSO FILED AN AFFIDAVIT DATED 20/2/2009 AND LETTER DATED 27/4/2009 TO DENY THE STATEMENT MADE DURING THE SURVEY UNDER SEC TION 133A. HE HAS FURTHER CONFIRMED THAT THE SALES MADE BY THE ASSESS EE WERE EFFECTED AND THE CONSIDERATION WAS RECEIVED BY CROSS ORDER CHEQU ES. THUS IT IS CLEAR THAT THERE IS NO MATERIAL ON RECORD TO SAY THAT THE PURCHASES MADE BY THE ASSESSEE FROM THE SAID CONCERN WERE BOGUS EXCEPT TH E GENERAL STATEMENT RECORDED BY THE DEPARTMENT IN THE CASE OF SHRI RAKE SH KUMAR GUPTA, WHICH WAS LATER ON RETRACTED. IN ABSENCE OF ANY MAT ERIAL BROUGHT ON RECORD AGAINST THE SUBMISSIONS MADE BY SHRI RAKESH KUMAR G UPTA IN HIS LETTER DATED 20/12/2009 FILED BEFORE THE AO OF THE ASSESSE E THE ADDITION, IF ANY, MADE IN THE CASE OF THE ASSESSEE WILL BE BASED ON P RESUMPTION ONLY AND IT CANNOT BE SUSTAINED IN THE EYES OF LAW. AS AGAINST THAT ASSESSEE HAS SUBMITTED VARIOUS EVIDENCES TO SHOW THAT THE ACTUAL DELIVERY OF THE GOODS WAS RECEIVED BY THE ASSESSEE FROM THE SAID PARTY WH ICH HAS NOT BEEN DISCARDED BY THE AO. THE ADDITION SUSTAINED BY LD. CIT(A) IS ALSO ON PRESUMPTION BASIS. THEREFORE, KEEPING IN VIEW THE F ACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE OPINION THAT ADDITIONS M ADE BY THE AO DESERVES TO BE DELETED IN ITS ENTIRETY. WE DECIDE ACCORDINGL Y. 8. THE ABOVE DECISION OF THE TRIBUNAL IN THE CASE OF JEETENDRA HARSHADKUMAR TEXTILES HAS BEEN SUBSEQUENTLY FOLLOWE D BY THE TRIBUNAL TO DECIDE A SIMILAR ISSUE IN FAVOUR OF THE ASSESSEE IN THE CASE OF M/S PRAMIT TEXTILES VS. ITO (ITA NO. 3948 TO 3953/MUM/2012 AND ITA NO. 4012 TO 4015 AND 4020 TO 4021/MUM/2012 DATED 1 ST OCTOBER, 2013). AS THE ISSUE INVOLVED IN THE PRESENT CASE AS WELL AS ALL T HE MATERIAL FACTS RELEVANT THERETO ARE SIMILAR TO THE CASE OF JEETENDRA HARSHA DKUMAR TEXTILES AND M/S PRAMIT TEXTILES (SUPRA), WE RESPECTFULLY FOLLOW THE ORDERS OF THE CO- ORDINATE BENCHES OF THIS TRIBUNAL IN THE SAID CASES AND DELETE THE ENTIRE ITA NO. 6141, 6142,7338&7339/MUM/2013 A.Y. 2008-09 AND 2009-2010 8 ADDITION MADE BY THE A.O. ON ACCOUNT OF UNEXPLAINED /UNPROVED PURCHASES IN ALL THE FOUR YEARS UNDER CONSIDERATION. GROUND N O. 1 OF ASSESSEES APPEAL FOR ASSESSMENT YEARS 2005-06, 2006-07, 2007- 08 & 2008-09 IS ACCORDINGLY ALLOWED WHEREAS GROUND NO. 1 OF THE REV ENUES APPEAL FOR ASSESSMENT YEARS 2006-07, 2007-08 AND 2008-09 IS DI SMISSED. 9. SIMILAR FINDING HAS BEEN GIVEN BY THE TRIBUNAL IN THE CASE OF PRAMIT TEXTILES AND M/S C. CHOTALAL & CO. (SUPRA). IT HAS BEEN INFO RMED BY THE LD. COUNSEL FOR THE ASSESSEE THAT IN OTHER CASES ALSO WHEREIN SIMIL AR ADDITION WERE MADE ON ACCOUNT OF STATEMENT OF SHRI RAKESH KR. M. GUPTA HA VE ALSO BEEN DELETED. SINCE, THE FINDING OF THE TRIBUNAL IN ALL THE CASES ARE BA SED ON SIMILAR SET OF FACTS, THEREFORE, RESPECTFULLY FOLLOWING THE SAME, WE DIRE CT THE A.O. TO DELETE THE ENTIRE ADDITION OF PURCHASES AND CONSEQUENTLY THE GROUND R AISED BY THE ASSESASEE IS ALLOWED WHEREAS THE GROUNDS RAISED IN REVENUES APP EAL ARE DISMISSED. 10. IN ASSESSMENT YEARS 2007-08 AND 2008-09 ALSO, SIMILAR GROUNDS HAVE BEEN RAISED AND SIMILAR FACTS ARE PERMEATED IN THESE YEA RS, THEREFORE, THE AFORESAID FINDING GIVEN ABOVE WILL APPLY AND ACCORDINGLY, THE ADDITION MADE ON ACCOUNT OF PURCHASES IN BOTH THE YEARS ARE DELETED. 11. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALL OWED WHEREAS APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27TH MAY, 2015. 6. IN THIS VIEW OF THE SITUATION, AFTER HEARING BOT H THE PARTIES AND FOLLOWING THE AFOREMENTIONED DECISION OF TRIBUNAL IN GROUP CA SE OF THE ASSESSEE WE ALLOW THE APPEALS FILED BY THE ASSESSEE AND DISMISS THE APPEALS OF THE REVENUE. 7. IN THE RESULT, ASSESSEES APPEALS ARE ALLOWED AN D REVENUES ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23/06/2015 ( 0 1 2 23/06/2015 ( SD/- SD/- ( / N.K.BILLAIYA ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 1 DATED 23/06/2015 / COPY OF THE ORDER FORWARDED TO : ITA NO. 6141, 6142,7338&7339/MUM/2013 A.Y. 2008-09 AND 2009-2010 9 1. !$ / THE APPELLANT 2. %&!$ / THE RESPONDENT. 3. 4) ( ) / THE CIT(A)- 4. 4) / CIT 5. 56 %)78 , * 78 , / DR, ITAT, MUMBAI 6. 9 / GUARD FILE. / BY ORDER, & 5) %) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . . ./ VM , SR. PS