ACIT, New Delhi V. M/s. Noida Medicare Centre Ltd., New Delhi

ITA 630/DEL/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6749 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 11-08-2016
• Assessment Year: 1994-1995
• Appeal Filed On: 04-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: T R TALWAR
• Keywords: Unexplained cash credit
• Section: 37(1)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E , NEW DELHI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO. 6 30 /DEL/2014 A.Y. 1994 - 95 ACIT, CIRCLE 37(1) VS. NOIDA MEDICARE CENTRE LTD. NEW DELHI VIMHANS, 1, INSTITUTIONAL AREA NEHRU NAGAR NEW DELHI 110 065 PAN: AAACN 0980 B (APPELLANT) (RESPONDENT) APPELLANT BY : SH. RAJESH KUMAR, SR.D.R RESPONDENT BY : SH. T.R.TALWAR, ADV. ORDER PER J.SUDHAKAR REDDY, A.M. THIS IS AN APPEAL FILED BY THE REVENUE DIRECTED AGAINST THE ORDER OF THE LD.COMMISSIONER OF INCOME TAX (APPEALS) - V, NEW DELHI DT. 29.11.2013 PERTAINING TO THE ASSESSMENT YEAR (A.Y.) 1994 - 95. 2. AFTER HEARING RIVAL SUBMISSIONS WE FIND THAT THE FIRST APPELLATE AUTHORITY AT PAGE 9 LAST PARA AND PAGE 10 HELD AS FOLLOWS. 2 AS AGAINST THE ABOVE FACTS, THERE IS YET ANOTHER SET OF FACTS WHICH IS THAT THE ASSESSEE HAD DURING THE ASSESSMENT PROCEEDINGS FURNISHED THE DETAILS OF GOODS PURCHASED FOR THE EXPORT OF GOODS TOGETHER WITH BILLS OF M/S AKRITI SERVICES; THE CHALLANS RECEIV ED FROM M/S AKRITI SERVICES; THE CONFIRMATION OF M/S AKRITI SERVICES REGARDING THE TOTAL PAYMENT RECEIVED BY THEM FOR AN AMOUNT OF RS.36 LACS VIDE THREE CHEQUES BEARING NO.933301 TO 933303; THE COPY OF THE BANK A / C OF THE ASSESSEE EVIDENCING PAYMENT OF RS. 36,LACS TO M/S AKRITI SERVICES VIDE THE ABOVE MENTIONED CHEQUES AND ALSO THE FACT THAT THESE PAYMENTS MADE THROUGH THE BANK WAS ON ACCOUNT OF PACKING CREDIT LOAN FACILITY ENJOYED BY THE ASSESSEE COMPANY WITH THE SAID VIJAYA BANK. AS REGARDS, THE NON - PRODUCTION OF SELLER M/S AKRITI SERVICES T HE SUBMISSIONS OF THE ASSESSEE IS THAT HE COULD NOT BE PRODUCED AS THE SUPPLIER WAS NOT TRACEABLE AT THE GIVEN ADDRESS, WHEN THE ASSESSMENT PROCEEDINGS WERE IN PROGRESS. THE ASSESSEE ALSO ARGUES THAT THE MERE NON PRODUCTION OF THE SUPPLIER CANNOT LEAD TO THE CONCLUSION THAT THE PURCHASES WERE BOGUS PARTICULARLY IN VIEW OF THE FACT THAT THE AO HAS DEMONSTRATED THE GENUINENESS OF THE SALES MADE BY WAY OF EXPORT OF THE ABOVE P URCHASES OF FILMS. IN THIS CONNECTION THE ASSESSEE HAS SUBMITTED COPY OF THE EXPORT ORDER RECEIVED FROM DUBAI, THE INVOICES MADE FOR EXPORT, THE EVIDENCE OF EXPORT IN THE FORM OF SHIPPING BILL, AIR WAYS BILL, CUSTOM CLEARANCE CERTIFICATES AND BANK CERTIFI CATES OF EXPORT AND REALISATION OF THE PAYMENT OF RS.42,21,450/ - . THAT THE BANK CERTIFICATES FOR EXPORT OF THE GOODS PURCHASED FROM M/S AKRITI SERVICES AND THE REALISATION OF FOREIGN EXCHANGE THROUGH BANKING CHANNELS AHS ALSO BEEN FURNISHED. IT HAS BEEN ARGUED THAT WITHOUT ACTUALLY PURCHASING THE GOODS IN QUESTION THE ASSESSEE COULD NOT BE EXPORTED THE SAME, WHICH HAVE BEEN VERIFIED BY THE CUSTOM DEPARTMENT. IT HAS BEEN CONCLUDED THAT IT IS UNTENABLE IN LAW TO TREAT THE FOREIGN EXCHANGE REALIZATION THROUG H BANKING CHANNELS AS UNEXPLAINED CASH CREDIT U1S 68 OF THE L.T.ACT. IT HAS ALSO BEEN ADDITIONALLY ARGUED THAT SINCE THE PAYMENT OF RS.36 LACS FOR PURCHASE OF THE GOODS FROM M / S AKRITI SERVICES HAS BEEN MADE THROUGH BANKING CHANNELS AND ON ACCOUNT OF CRE DIT LOAN FACILITY THEREFORE ON THE FACE OF IT, THE SOURCE OF THE PURCHASES ARE EXPLAINED AND THEREFORE THIS MAKES IT FURTHER INCONCEIVABLE THAT THE ASSESSEE 3 WOULD UTILIZED RS.36 LACS OF ACCOUNTED FUNDS TO RECEIVE UNACCOUNTED MONEY FOR RS.42,25,OOOI - THROUG H EXPORTS. IN MY CONSIDERED VIEW, THE NON PRODUCTION OF M / S AKRITI SERVICES BY THE ASSESSEE BEFORE THE AO IS THE ONLY GROUND WHICH HAS BEEN EMPHASIZED BY THE AO TO HOLD THE ENTIRE PURCHASES AS BOGUS . NOW IN THE FACE OF DOCUMENTARY EVIDENCES TO THE EFFECT THAT THE :PAYMENTS FOR THE PURCHASES WERE MADE THROUGH BANKING CHANNELS, THE CONFIRMATION OF WHICH IS PLACED ON RECORD AND THE FACT THAT THESE PAYMENTS HAVE BEEN MADE BY OBTAINING CREDIT FACILITY FROM THE BANK, IT CANNOT BE STRAIGHTAWAY INFERRED THAT THE PURCHASES ARE NOT GENUINE. IT HAS ALSO TO BE TAKEN INTO ACCOUNT THAT THE ENQUIRY OF THE AO TOOK PLACE AFTER A SUBSTANTIAL TIME GAP FROM THE DATES OF PURCHASE OR PAYMENT MADE BY THE ASSESSEE TO M / S AKRITI SERVICES AT IT'S GIVEN ADDRESS BY ITSELF CANNOT BE MADE THE RAISON D'ETRE FOR REJECTING THE PURCHASES. MOREOVER, THE ASSESSEE HAS PRODUCED ENOUGH EVIDENCE TO SUBSTANTIATE THE SALES OF THESE VERY GOODS WHICH WAS . CLEARED THROUGH CUSTOM AUTHORITY, THE AIRWAYS BILLS FOR TRANSPORTATION OF GOODS AND THE EVIDEN CE OF REALIZATION OF MONEY TH R OUGH BANKING CHANNELS. IN FACE OF ALL THESE EVIDENCES THERE IS NO VALID REASON TO DISALLOW THE PURCHASES AND IGNORE THE REMITTANCES RECEIVED ON ACCOUNT OF SALES . IN FACT THERE IS NO EVIDENCE TO DOUBT THE GENUINENESS OF THE S ALES ON WHICH NO DOUBT HAS BEEN RAISED BY THE AO IN ORDER. THEREFORE, IT IS A NECESSARY INFERENCE THAT THE PURCHASES MUST HAVE TAKEN PLACE IN ORDER TO AFFECT SUCH SALES. 3. THE LD.D.R. COULD NOT CONTROVERT THESE FACTUAL FINDINGS OF THE FIRST APPELLATE AU THORITY. THE ASSESSING OFFICER (A.O.) IN THIS CASE HAS NO MATERIAL TO DOUBT THE CLAIMS MADE BY THE ASSESSEE. THE SO CALLED INCONSISTENCIES POINTED OUT BY THE A.O. DO NOT MERIT THE ADDITIONS MADE BY HIM. 4. IN OUR VIEW NO INTERFERENCE IS CALLED FOR IN THE ORDER OF THE FIRST APPELLATE AUTHORITY. 4 5. IN THE RESULT, WE UPHOLD THE ORDER OF THE FIRST APPELLATE AUTHORITY AND DISMISS THIS APPEAL OF THE REVENUE. ORDER PRONOUNCED IN THE OPEN COURT ON 2 7 T H O CTOBER, 2016. S D / - S D / - (SUDHANSHU SRIVASTAVA) (J. SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: THE 2 7 T H OCTOBER, 2016 MANGA COPY FORWARDED TO: - 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR, ITAT - TRUE COPY - BY ORDER, ASSISTANT REGISTRAR