VAMA INTERNATIONAL, MUMBAI V. ASST CIT 21(3), MUMBAI

ITA 7315/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0251 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2013-2014
• Appeal Filed On: 13-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PURSHOTTAM KUMAR
• Assessee Lawyers: BHADRESH K DOSHI
• Keywords: Bogus purchase; Search and seizure; Accommodation entries; Onus to prove
• Section: 133(6); 147; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI RAJESH KUMAR , HON'BLE ACCOUNTANT MEMBER ITA.NO. 7315, 7316 & 7317 /MUM/201 6 (A.Y S : 20 13 - 14, 2012 - 13 & 2011 - 12 ) M/S. VAMA INTERNATIONAL 3101, ERA 4, MARATHON NEXT GEN, VEER SANTAAJI MARG, OPP. PENINSULA CORP PARK, LOWER PAREL, MUMBAI 400 013 PAN NO: AAEFV 7881 L V. INCOME TAX OFFICER 21(3)(1) PIRAMAL CHAMBER PAREL, MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI BHADRESH K. DOSHI REVENUE BY : SHRI PURSHOTTAM KUMAR DATE OF HEARING : 17.11. 2017 DATE OF PRONOUNCEMENT : 15 .02.2018 O R D E R PER C. N. PRASAD (JM) 1. THESE APPEALS ARE FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE LD.CIT(A) - 33, MUMBAI DATED 25.10.2016 FOR THE ASSESSMENT Y EARS 2013 - 14, 2012 - 13 AND 2011 - 12 . 2. THE ASSESSEE IN ALL ITS APPEALS CHALLENGED THE ORDER OF THE LD.CIT(A) IN SUSTAINING THE DISALLOWANCE OF PURCHASES AT 12.5% FOR THE ASSESSMENT YEAR S 2011 - 12 TO 2013 - 14. 2 ITA.NO. 7315, 7316 & 7317/MUM/2016 (A.YS: 2013 - 14, 2012 - 13 & 2011 - 12) M/S. VAMA INTERNATIONAL 3. BRIEFLY STATED THE FACTS ARE THAT, THE ASSESSMENTS FOR THE ASSESSMENT YEARS 2011 - 12 TO 2013 - 14 WERE REOPENED U/S. 147 OF THE ACT BASED ON THE INFORMATION RECEIVED FROM DGIT(INVESTIGATION), MUMBAI THAT THE ASSESSEE IS ONE OF THE BENEFICIARIES OF BOGUS PURCHASES MA DE BY CERTAIN ENTITIES OPERATED/ MANAGED BY BHANWARLAL JAIN GROUP WHICH IS ONLY A BOGUS CONCERN. DURING THE COURSE OF SEARCH , SHRI BHANWARLAL JAIN HAS ADMITTED IN THE STATEMENT TAKEN ON OAT H U/S. 132(4) OF THE ACT THAT HE HAS INDULGED IN PROVIDING ACCOMMODATION ENTRIES AND ALSO ADMITTED THAT THESE ARE PAPER COMPANIES WITH NO REAL BUSINESS TRANSACTIONS . IT WAS ALSO ADMITTED BY HIM THAT HE WAS ENGAGED IN BUSINESS OF BILL SHOPPING THROUGH ALL THE CONCERNS DUE TO WHICH THEY DO NOT HAVE ANY PHYSICAL STOCK OF DIAMOND WITH THEM AT ANY OF ITS PLACES AT ANY POINT OF TIME. IT WAS ALSO ADMITTED THAT THEY WERE MERELY LENDING NAMES OF VARIOUS CONCERNS TO IMPORTER OF DIAMONDS WHO TAKES ACTUAL DELIVE RY. BA SED ON THIS INFORMATION FROM DGIT(INVESTIGATION) THE ASSESSMENTS WERE REOPENED AND IN THE COURSE OF RE - ASSESSMENT PROCEEDINGS ASSESSEE WAS REQUIRED TO PROVE THE GENUINENESS OF THE PURCHASES MADE FROM THE ENTITIES OPERATED BY SHRI BHANWARLA L JAIN. ASSESSEE FURNISHED ITS SUBMISSIONS ALONG WITH PURCHASE BILLS , COPY OF LEDGER ACCOUNT, COPIES OF BANK STATEMENTS ETC. TO VERIFY THE GENUINENESS OF THE PURCHASES . THE ASSES SING OFFICER ISSUED NOTICE S U/S. 133(6) OF THE ACT TO THE PARTIES AND SOME OF THE PARTIES HAVE 3 ITA.NO. 7315, 7316 & 7317/MUM/2016 (A.YS: 2013 - 14, 2012 - 13 & 2011 - 12) M/S. VAMA INTERNATIONAL CONFIRMED THAT THE TRANSACTIONS FR OM THE ASSESSEE WAS GENUINE. PARTIES HAVE FILED THEIR ACKNOWLEDGMENT OF INCOME - TAX RETURN FILED, COPY OF INVOICE, LEDGER ACCOUNT OF THE ASSESSEE FIRM IN THEIR BOOKS SHOWING PAYMENTS RECEIVED FROM T HE ASSESSEE. HOWE VER, THE ASSESSING OFFICER NOT CONVINCED WITH THE SUBMISSIONS OF THE ASSESSEE AND SINCE NO DELIVERY CHALLANS WERE FURNISHED TO PROVE THE DELIVERY OF GOODS HAVE BEEN ACTUALLY MADE BY THE ALLEGED SUPPLIERS TO THE ASSESSEE AND SINCE THE DIRE CTORS / PROPRIETORS OF THE SUPPLIER COMPANIES/FIRMS HAVE DEPOSED ON OATH THAT ALL THE CONCERNS CONTROLLED AND MANAGED BY THEM ARE NOT DOING ANY REAL TRADING IN DIAMONDS BUT IND ULGED IN PAPER TRANSACTION ONLY, THE ASSESSING OFFICER R EJECTED THE SUBMISSIONS OF THE ASSESSEE THAT THE PURCHASES MADE FROM THESE ENTITIES ARE GENUINE. THE ASSESSING OFFICER STATED THAT THE STA TE MEN T RECORDED FROM SHRI BHANWARLAL JAIN CLEARLY ESTABLISHED THAT THE CONCERNS CONTROLLED AND OPERATED BY THEM ARE NOT CARRYING OUT ANY GENUINE BUSINESS ACTIVITY. 4. IT WAS ALSO OBSERVED BY THE ASSESSING OFFICER THAT THE REPORT RECEIVED FROM THE OFFICE OF THE DGIT ( INVESTIGATION ) DURING THE COURSE OF POST SEARCH INQUIRIES THE MODUS - OPERANDI FOLLOWED BY THE GROUP CONCERNS HAVE BEEN ACCEPTED BY THE KEY PERSONS IN THE GROUP. EVEN DURING THE POST SEARCH ENQUIRES SHRI BHANWARLAL JAIN ADMITTED THE FACT THAT THEY ARE ENGAGED IN PAPER TRANSACTION ONLY WITHOUT ANY PHYSICAL STOCK OF THE GOODS 4 ITA.NO. 7315, 7316 & 7317/MUM/2016 (A.YS: 2013 - 14, 2012 - 13 & 2011 - 12) M/S. VAMA INTERNATIONAL IN THE NAME OF THEIR NUMEROUS CONCERNS THEY IMPORT ROUGH AND CUT AND POLISHED DIAMONDS FOR THE OTHER C LIENTS WHO DO NOT WANT TO SHO W IMPORT IN THEIR O WN BOOKS. FURTHER THESE CONCERN S ISSUED BILLS ACCOMMODATION ENTRIES IN A COMMISSION TO VARIOUS PARTIES WHO NOR MALLY PURCHASES DIAMONDS IN CASH FROM UN DISCLOSED PARTIES AND NEED BILLS TO SHOW PURCHASES AGAINST SALES IN THEIR ACCOUNT. FURTHER THESE CONCERNS ALSO PROVIDE ACCOMMODATION ENTRIES TO UNSECURED LOAN AGAINST CASH. THEREFORE, THE ASSESSING OFFICER CONCLUDED THAT THE TRANSACTIONS MADE BY T HESE ENTITIES MANAGED BY SHRI BHANWARLAL JAIN ARE ONLY PROVIDING ACCOMMODATION ENTRIES TO THE BENEFI CIARIES AND ASSESSEE IS ONE AMONG SUCH BENEFICIARIES . THEREFORE, THE ASSESSING OFFICER CONCLUDED THAT THE MATERIAL WAS DEBITED AGAINST VARIOUS SUPPLIERS HAVE ENTERED INTO STOCK REGISTER AND THE ASSESSEE HAS SHOWN CORRESPONDING SALES AGAINST T HE SAID PURCHASES DEBITED AND THIS COULD ONLY MEAN THAT THE DIAMONDS WERE BRO UGHT BY THE ASSESSEE FROM THE GRAY MARKET W ITHOUT BILL AND TO ADJUST TH ESE TRANSACTION S INTO THE BOOKS OF ACCOUNTS , ASSESSEE HAS OBTAINED BILLS FROM SHRI BHANWARLAL JAIN GROUP CONCERNS. THEREFORE, HE CONCLUDED THAT T HE ASSESSEE OBTAINED ONLY THE BOGUS BILLS WITHOUT MOVEMENT OF GOODS AND GOODS WERE PURCHASED IN GRAY MARKET BY P AYING CASH. THEREFORE, TAKING NOT E OF ALL THESE FACTORS INTO CONSIDERATION THE ASSESSING OFFICER IN SO FAR AS THE ASSESSMENT YEAR S 2012 - 1 3 AND 2013 - 14 TREATED 5 ITA.NO. 7315, 7316 & 7317/MUM/2016 (A.YS: 2013 - 14, 2012 - 13 & 2011 - 12) M/S. VAMA INTERNATIONAL 12.5% OF THE PURCHASES AS NON - GENUINE AND I N SO FAR AS ASSESSMENT YEAR 2011 - 12 IS CONCERNED 100% OF THE PURCHASES WERE TREADED AS BOGUS PURCHASES . 5. THE LD.CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER IN TREATING THE PURCHASES AS NON - GENUINE AS THERE IS NO MOVEMENT O F GOODS AND IT WAS ADMITTED BY SHRI BHANWARLAL JAIN THAT THEY ARE PROVIDING ONLY ACCOMMODATION ENTRIES AND THERE WAS NO REAL TRANSACTION. THE LD.CIT(A) ALSO ACCEPTED THE ACTION OF THE ASSESSING OFFICER IN DISALLOWING CERTAIN PERCENTAGE OF IMPUGNED PURCHASES , IN VIEW OF THE DECISION OF THE HO N'BLE GUJARAT HIGH COURT IN THE CA SE OF CIT V. BHOLANATH POLYFAB PVT. LTD. [355 ITR 290] AND CIT V . SIMIT P. SETH [356 ITR 451] AND ACCORDINGLY HE ESTIMATED THE PROFIT ELEMENT IN THE PURCHASES AT 12.5 % FOR ALL THE ASSESSMENT YEARS 2011 - 12 TO 2013 - 14. 6. BEFORE US THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT ASSESSEE IS INTO TRADING AND EXPORT OF DIAMONDS AND THE DISALLOWANCES WERE MADE ONLY BASED ON THE ADMISSION O F SHRI BHANWARLAL JAIN IN THE COURSE OF SEARCH AND SEIZURE PROCEEDINGS AND SINCE THE PARTIES HAVE CONFIRMED THAT THE TRANSACTION HAS ENTERED INTO BY THE ASSESSEE ARE GENUINE THE PURCHASES CANNOT BE TREATED AS NON - GENUINE, ESPECIAL LY SINCE SALES ARE NOT DISPUTED AND THEY HAVE ACCEPTED. LD. COUNSEL FOR THE 6 ITA.NO. 7315, 7316 & 7317/MUM/2016 (A.YS: 2013 - 14, 2012 - 13 & 2011 - 12) M/S. VAMA INTERNATIONAL ASSESSEE FURTHER SUBMITTED THA T, ASSESSEE SUBMITTED COPIES OF PURCHASE INVOICES, LEDGER CONFIRMATIONS, COPIES OF BANK STATEMENTS REFLECTING PAYMENTS MADE TO THE SUPPLIERS AND STOCK REGISTER REFLECTING INWARD OF GOODS PURCHASED FROM THEM AND CORRESPONDING SALES IN SUPPORT OF GENUINENESS OF ITS PURCHASES. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT AO ISSUED NOTICES U/S. 133(6) CALLING FOR RELEVANT DETAILS FROM THE PARTIES. EACH OF THE PARTY HAS REPLIED AND SUBMITTED LEDGER A/C OF THE ASSESSEE IN THEIR BOOKS OF ACCOUNTS, COPIES OF SA LES INVOICES ISSUED BY THEM, BANK STATEMENTS REFLECTING THE PAYMENTS MADE BY THE ASSESSEE TO THEM, COPIES OF ACKNOWLEDGEMENT OF INCOME - TAX RETURNS FILED BY THEM, AUDITED PROFIT & LOSS A/C AND BALANCE SHEET FOR ALL THE YEARS INVOLVED. LD. COUNSEL FOR THE A SSESSEE SUBMITTED THAT NONE OF THE SUBMITTED DOCUMENTS HAVE BEEN DOUBTED BY THE LOWER AUTHORITIES. THE SALES MADE BY THE ASSESSEE INCLUDED EXPORTS AS WELL AND THUS, MANY OF THE PURCHASES MADE FROM THE IMPUGNED PARTIES WERE EXPORTED OUT OF INDIA. THUS, IT IS SUBMITTED THAT THE ASSESSEE DISCHARGED ITS ONUS TO PROVE THE GENUINENESS OF PURCHASES MADE BY IT FROM THE IMPUGNED PARTIES. 7. LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT N ONE OF THE IMPUGNED PARTIES HAVE BEEN DECLARED AS HAWALA DEALERS OR SUSPICIOUS DEALERS BY THE SALES TAX DEPARTMENT AND THE GENUINENESS OF THE PURCHASES HAVE BEEN DOUBTED MERELY ON THE BASIS OF A STATEMENT OF A 7 ITA.NO. 7315, 7316 & 7317/MUM/2016 (A.YS: 2013 - 14, 2012 - 13 & 2011 - 12) M/S. VAMA INTERNATIONAL THIRD - PARTY NAMELY MR. BHANWARLAL JAIN. IN FACT, ONE OF THE PARTIES I.E. M/S. DAKSH DIAMONDS HAS BEEN GRANTED A R EGISTRATION UNDER THE NEW GST ACT AS WELL. THE SALES TAX DEPARTMENT HAS NOT INITIATED ANY ACTION AGAINST THE ASSESSEE FOR DISALLOWANCE OF SET - OFF IN RESPECT OF VAT PAID ON THE PURCHASES FROM THE IMPUGNED PARTIES. 8. LEARNED COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE AO DID NOT APPRECIATE THE FACT THAT THE ASSESSEE PURCHASED DIAMONDS FROM THE IMPUGNED PARTIES AND THERE IS A PRACTICE OF HAND DELIVERY OF SUCH PRECIOUS AND LOW - WEIGHING MATERIALS. THEREFORE, NO ADVERSE CONCLUSION CAN BE DRAWN MERELY DUE TO ABSENCE OF DOCUMENTS PROVING DELIVERIES. 9. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT , THE CREDIT PERIOD OF SIX MONTHS IS VERY COMMON IN THE DIAMOND INDUSTRY. THE AO'S OBSERVATION IN THE ORDER FOR AY 2011 - 12 THAT UNREASONABLE CREDIT PERIOD HAS BEEN GRAN TED BY DAKSH DIAMONDS IS FACTUALLY INCORRECT. THE AO HAS MENTIONED THAT ALL THE PARTIES HAVE BEEN PAID REGULARLY EXCEPT FOR DAKSH DIAMOND. HOWEVER, OUT OF TOTAL PURCHASES OF . 9,47,27,364/ - OUTSTANDING CREDITORS AT THE YEAR - END WERE . 4,49,93,630 WHICH IS ALMOST 50%. EVEN THE PURCHASE MADE PRIOR TO PURCHASE FROM DAKSH DIAMOND WAS ALSO OUTSTANDING E.G. PURCHASE OF .26,54,752/ - FROM VAISHALI GEMS DATED 22.10.2010. 8 ITA.NO. 7315, 7316 & 7317/MUM/2016 (A.YS: 2013 - 14, 2012 - 13 & 2011 - 12) M/S. VAMA INTERNATIONAL 10. LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT T HE AO HAS ASKED THE ASSESSEE TO PRODUCE THE PARTIES WITHOUT APPRECIATING THE FACT THAT IT WAS BEYOND THE CONTROL OF THE ASSESSEE. THE AO OUGHT TO HAVE INVOKED THE POWERS GIVEN TO HIM UNDER THE ACT BY ISSUING SUMMONS TO THEM REQUIRING THEIR PERSONAL ATTENDANCE. 11. LEARNED COUNSEL FOR THE ASSESSEE S UBMITTED THAT AT PARA 16 OF THE ORDER THE LD.CIT(A) OBSERVED AS FOLLOWS: THE FACTS AND CIRCUMSTANCES AS OUTLINED ABOVE, CLEARLY SUGGEST THAT THE PURCHASES BY THE ASSESSEE FROM M/S. DAKSH DIAMONDS CANNOT BE DOUBTED BUT A MAJOR FLAW IN THESE TRANSACTIONS IS THE UNVERIFIABLE NATURE OF TRANSACTIONS OF THESE PURCHASES FROM M/S. DAKSH DIAMONDS AS IT WAS NOT FOUND AVAILABLE AT THE GIVEN ADDRESS. HOWEVER, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE FACT IS THAT THE AO ISSUED NOTICES U/S. 133(6) TO ALL THE PARTIES WHICH WERE NOT ONLY SERVED UPON THEM BUT WERE ALSO RESPONDED BY ALL OF THEM. 12. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD.CIT(A) AGREES WITH THE FACT THAT THE AO HAS MERELY RELIED UPON THE STATEMENT RECORDED BY THE INVESTIGATION WING AND IN - DEPTH INVESTIGATION WAS NOT CARRIED OUT TO THE EXTENT REQUIRED. THE LD.CIT(A) OUGHT TO HAVE MADE THE INVESTIGATION EITHER ON HIS OWN OR THROUGH THE AO WHICH IN HIS OPINION WAS REQUIRED BEFORE CONFIRMING ANY ADDITION. THE STATEMENTS OF MR. BHANWARLAL JAIN AND OTHERS RELIED UPON BY THE AO HAVE BEEN RETRACTED BY THEM. LEARNED 9 ITA.NO. 7315, 7316 & 7317/MUM/2016 (A.YS: 2013 - 14, 2012 - 13 & 2011 - 12) M/S. VAMA INTERNATIONAL COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE IMPUGNED PARTIES HAVE BEEN ENGAGED INTO IMPORTS AS WELL WHICH EVIDENT FROM THE AUDITED P & L A CCOUNT SUBMITTED BY THEM. THIS FACT HAS ALSO BEE N NOTED BY THE AO IN HIS ORDER. 13. THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT T HE GP MARGIN EARNED BY THE ASSESSEE FROM SALE OF MATERIALS PURCHASED FROM THE IMPUGNED PARTIES IS COMPARABLE WITH THE MARGIN EARNED FROM OTHER TRANSACTIONS. THE ADDITION @12.5% WOULD DISTORT THIS POSITION AND IT WOULD SHOW UNREALISTIC RESULTS AS MENTIONED BELOW: YEAR OVERALL GP% GP% IN OTHER TRANSACTIONS GP% IN THE IMPUGNED TRANSACTIONS GP% AFTER CONSIDERING ADDITION @12. 5% 2011 - 12 5.49% 5.15% 5.01% 16.88% 2012 - 13 6.31% 4.50% 4.66% 16.57% 2013 - 14 6.32% 3.97% 3.72% 15.85% 14. THUS THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PURCHASES ARE NOT BOGUS AND THEY CANNOT BE TREATED AS NON - GENUINE . THEREFORE, PLEADED TO DELETE THE ADDITION/DISALLOWANCE MADE BY THE ASSESSING OFFICER. 15. LD. DR VEHEMENTLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. LD. DR FURTHER SUBMITS THAT AS PER THE CBDT INSTRUCTION S PROFIT MARGIN FOR THE DIAMOND TRADE IS 6% AND THEREFORE AT LE A ST 6% IS TO BE ESTIMATED AS THE PROFIT ELEMENT FROM THESE PURCHASES FOLLOWING THE CBDT INSTRUCTIONS . 10 ITA.NO. 7315, 7316 & 7317/MUM/2016 (A.YS: 2013 - 14, 2012 - 13 & 2011 - 12) M/S. VAMA INTERNATIONAL 16. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW. IN THIS CASE THE ASSESSMENTS WERE REOPENED BASED ON THE INFORMATION FROM THE DGIT(INVESTIGATIONS), MUMBAI THAT ASSESSEE IS A BENEFICIARY FROM THE ENTITIES OPERATED BY SHRI BHANWARLAL JAIN WHEREIN THE SEARCH TOOK PLACE AND IT WAS FOUND THAT SHRI BHANWARLAL JAIN IS PROVIDING ONLY ACCOMMODATION ENTRIES AND THERE WERE NO ACTUAL SALE TRANSACTIONS . ASSESSING OFFICER OBSERVED THAT THE ASSESSEE COULD NOT PROVE THE MOVEMENT OF GOODS FROM THE SUPPLIERS TO THE ASSESSEE. IN THE ABSENCE OF DELIVERY CHALLANS AND BASED ON THE STATEMENTS OF BHANWARLAL JAIN THAT THEY HA VE PROVIDED ONLY ACCOMMODATION BILLS, THE ASSESSING OFFICER HAS CONCLUDED THAT THE ASSESSEE HAS OBTAINED ONLY BOGUS BILLS AND ASSESSEE MIGHT HAVE PURCHASED GOODS IN GRAY MARKET. THE ASSESSING OFFICER ESTIMATED THE GROSS PROFIT MARGIN ON SUCH PURCHASES AT 12.5% FOR THE ASSESSMENT YEARS 2012 - 13 AND 2013 - 14 . FOR THE ASSESSMENT YEAR 2011 - 12 THE ENTIRE PURCHASES WERE TREATED AS NON - GENUINE . THE LD.CIT(A) TAKING NOTE OF THE SUBMISSIONS OF T HE ASSESSEE AS WELL AS THE AVERMENTS OF THE ASSESSING OFFI CER AND VARIO US CASE LAWS ESTIMATED THE PROFIT ELEMENT FROM THESE PURCHASES AT 12.5 % F OR ALL THE ASSESSMENT YEARS 2011 - 12 TO 2013 - 14 . THE LD.CIT(A) IN HIS ORDER OBSERVED AS UNDER: 11. I HAVE CAREFULLY GONE THROUGH THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER AND THE WRITTEN SUBMISSIONS OF THE APPELLANT ON THE ISSUE. I HAVE ALSO CONSIDERED VARIOUS CASE LAWS RELIED UPON BY THE APPELLANT. MY OBSERVATIONS ARE AS UNDER. 11 ITA.NO. 7315, 7316 & 7317/MUM/2016 (A.YS: 2013 - 14, 2012 - 13 & 2011 - 12) M/S. VAMA INTERNATIONAL 12. THE AO HAS FORMED HIS VIEW ABOUT THE BOGUS NATURE OF THE PURCHASE MADE BY THE APPELLANT FRO M M/S.DAKSH DIAMONDS ON THE BASIS OF VARIOUS INCRIMINATING. DOCUMENTS AND EVIDENCES SEIZED DURING THE COURSE OF SEARCH & SEIZURE ACTION IN THE CASE OF BHANWARLAL JAIN GROUP, WHICH HAS ESTABLISHED THAT THE SAID GROUP WAS ENGAGED IN PROVIDING ACCOMMODATION E NTRIES OF BOGUS SALES/PURCHASES/LOANS TO VARIOUS BENEFICIARIES. 13. IN MY OPINION, SIMPLY RELYING UPON THE INFORMATION RECEIVED FROM THE DGIT(INV.) REGARDING THE DEFAULT COMMITTED BY M/S. DAKSH DIAMONDS CANNOT BE TAKEN AS THE SOLE BASIS TO TREAT THE ENTIRE PURCHASES MADE FROM IT AS BOGUS OR NON - GENUINE. THE ASSESSING OFFICER HAS PRIMARILY RELIED ON THE CONCLUSIONS DRAWN BY THE INVESTIGATION WING ON THE BASIS OF THE STATEMENT GIVEN BEFORE THE INCOME TAX AUTHORITIES AND HEAVY RELIANCE ON SUCH STATEMENT TO TREAT ENTIRE PURCHASES MADE FROM THE ABOVE PARTY AS BOGUS, CANNOT BE HELD TO BE JUSTIFIED. THE INFORMATION RECEIVED FROM THE DGIT(INV.) WAS A PIECE OF EVIDENCE TO INITIATE IN - DEPTH INDEPENDENT INVESTIGATION ON THE ISSUE, WHICH THE ASSESSING OFFICER HAS NOT FULLY CARRIED OUT. FURTHER FULL ENQUIRY ON THE GIVEN SET OF FACTS AND CIRCUMSTANCES AND WITHOUT APPRECIATING THE EVIDENCES SUBMITTED BY THE APPELLANT IN RESPECT OF THE PURCHASES MADE FROM THE ALLEGED BOGUS PARTY HAS REMAINED TO BE CARRIED OUT BEFORE A RRIVING AT THE CONCLUSION THAT IMPUGNED PURCHASE DEBITED IN THE BOOKS OF THE APPELLANT ARE BOGUS. 14. IT IS NOT THE CASE OF THE ASSESSING OFFICER THAT THE ABOVE PARTY I.E. M/S. DAKSH DIAMONDS SPECIFICALLY STATED THAT IT HAD MADE BOGUS SALES TO THE APPELLANT. THE PURCHASE INVOICES, PAYMENTS TO THE PARTIES THROUGH CHEQUES AND CLOSING STOCK INVENTORY SUBMITTED BY THE APPELLANT ARE CERTAIN IMPORTANT EVIDENCES REGARDING THE PURCHASES MADE BY THE APPELLANT THAT CANNOT BE SET ASIDE SUMMARILY. THEREFORE, TH E CONCLUSION DRAWN REGARDING THE PURCHASES MADE FROM M/S.DAKSH DIAMONDS BEING ENTIRELY BOGUS, IS NOT JUSTIFIED. 15. IN THIS REGARD, THE RATIO WAS LAID DOWN BY THE HON'BLE HIGH COURT OF BOMBAY IN THE CASE OF CIT V. NIKUNJEXIMP ENTERPRISES (P.) LTD., IS VER Y RELEVANT, WHEREIN IT WAS HELD THAT WHEN THE ASSESSEE HAVE FILED LETTER OF CONFIRMATIONS OF THE SUPPLIERS, BANK STATEMENTS HIGHLIGHTING THE PAYMENT ENTRIES THROUGH ACCOUNT PAYEE CHEQUE, COPIES OF INVOICES, STOCK RECONCILIATION STATEMENTS BEFORE THE AO ; AND MERELY BECAUSE THE SUPPLIERS DID NOT APPEAR BEFORE THE AO, ONE CANNOT 12 ITA.NO. 7315, 7316 & 7317/MUM/2016 (A.YS: 2013 - 14, 2012 - 13 & 2011 - 12) M/S. VAMA INTERNATIONAL CONCLUDE THAT THE PURCHASES WERE NOT MADE BY THE ASSESSES. THE AO CANNOT DISALLOW THE PURCHASES ON THE BASIS OF SUSPICION BECAUSE THE SUPPLIERS WERE NOT PRODUCED BEFORE THEM.' 16. THE FACTS AND CIRCUMSTANCES AS OUTLINED ABOVE, CLEARLY SUGGEST THAT THE PURCHASES BY THE APPELLANT FROM M/S.DAKSH DIAMONDS CANNOT BE DOUBTED BUT A MAJOR FLAW IN THESE TRANSACTIONS IS THE UNVERIFIABLE NATURE OF TRANSACTIONS OF THESE PURCHASES FROM M/S. DAK SH DIAMONDS AS IT WAS NOT FOUND AVAILABLE AT THE GIVEN ADDRESS. THUS THE PURCHASE PRICES SHOWN ON THE INVOICES ARE NOT SUBJECTED TO VERIFICATION AND AS SUCH IT WAS DIFFICULT TO ESTABLISH THE CORRECTNESS OF THE PURCHASE PRICES PAID FOR THE MATERIALS PURCHAS ED FROM THEM. SUCH VERIFICATION OF THE SALE PRICE SHOWN ON THE INVOICES/BILLS WAS NECESSARY TO ASCERTAIN THE CORRECTNESS OF THE PROFITS SHOWN BY THE APPELLANT FOR THE PERIOD UNDER CONSIDERATION. THIS VERIFICATION WAS ALSO VITAL TO DETERMINE AS TO WHETHER T HE PURCHASE PRICES SHOWN ON THE BILLS/INVOICES, ARE AS PER PREVAILING MARKET PRICES OF THE MATERIALS PURCHASED AND TO ASCERTAIN THAT THE PRICE PAID FOR THE MATERIALS PURCHASED FROM M/S.DAKSH DIAMONDS IS NOT OVER INVOICED. IN THE ABSENCE OF ANY SUCH VERIFIC ATION OF THE CORRECTNESS OF THE PRICE PAID FOR THE MATERIALS PURCHASED BY THE APPELLANT, THE PURCHASE PRICE PAID AS MENTIONED ON THE INVOICES/BILLS CANNOT BE ACCEPTED AS THE CORRECT PRICE PAID FOR THE GOODS PURCHASED FROM M/S.DAKSH DIAMONDS. IN VIEW OF THE SAME, THE POSSIBILITY OF OVER - INVOICING OF THE MATERIALS PURCHASED TO REDUCE THE PROFIT, 'CANNOT BE RULED OUT. THEREFORE, THE GROSS PROFIT RATE SHOWN BY THE APPELLANT FOR THE YEAR UNDER CONSIDERATION CANNOT BE RELIED UPON. IN THE CIRCUMSTANCES, THE CORREC T APPROACH IN SUCH TRANSACTIONS WOULD BE TO ESTIMATE THE ADDITIONAL BENEFIT OR PROFIT EARNED ON THESE PURCHASES AND NOT TO DISALLOW THE ENTIRE PURCHASES FROM M/S. DAKSH DIAMONDS. THE DISALLOWANCE OF THE ENTIRE AMOUNT OF PURCHASES FROM M/S.DAKSH DIAMONDS WO ULD NOT BE LOGICAL AND WOULD AMOUNT TO TRAVESTY OF JUSTICE. IN MY VIEW EITHER THE PURCHASES FROM ABOVE MENTIONED PARTY ARE OVER INVOICED OR THE PURCHASES WERE ACTUALLY MADE BUT NOT FROM THE SAID PARTY FROM WHICH IT WAS CLAIMED TO HAVE BEEN MADE AND INSTEAD MAY HAVE BEEN PURCHASED FROM GREY MARKET WITHOUT PROPER BILLING OR DOCUMENTATION. 17. AS OF NOW THE ISSUE OF BOGUS PURCHASES HAS BEEN MUCH DISCUSSED AND DEBATED BY THE VARIOUS COURTS AND TRIBUNALS. IN MANY JUDICIAL PRONOUNCEMENTS ON THE ISSUE, THE COURTS HAVE TAKEN A CONSISTENT VIEW THAT IN CASE OF NON - EXISTENT PARTIES FROM WHOM THE PURCHASES ARE SHOWN TO HAVE BEEN MADE, ONLY PERT OF SUCH PURCHASES CAN BE DISALLOWED, PARTICULARLY IN THE CASES WHERE THE CORRESPONDING SALES ARE 13 ITA.NO. 7315, 7316 & 7317/MUM/2016 (A.YS: 2013 - 14, 2012 - 13 & 2011 - 12) M/S. VAMA INTERNATIONAL NOT DOUBTED. ALTERNATIVELY, T HE PROFIT EMBEDDED IN SUCH SALES AGAINST THE ALLEGED BOGUS PURCHASE, CAN ONLY BE BROUGHT TO TAX. 18. IN THE CASE OF CIT - 1 VS SIMIT P. SHETH, ITA NO. 553 OF 2012, ORDER DATED 16.01.2013, WHILE DECIDING A SIMILAR ISSUE THE HON'BLE HIGH COURT OF GUJARAT HAS HELD THAT: - WE ARE BROADLY IN AGREEMENT WITH THE REASONING ADOPTED BY THE COMMISSIONER (APPEALS) WITH RESPECT TO THE NATURE OF DISPUTED PURCHASES OF STEEL. IT MAY BE THAT THE THREE SUPPLIERS FROM WHOM THE ASSESSEE CLAIMED TO HAVE PURCHASED THE STEEL DID NOT OWN UP TO SUCH SALES. HOWEVER, VITAL QUESTION WHILE CONSIDERING WHETHER THE ENTIRE AMOUNT OF PURCHASES SHOULD BE ADDED BACK TO THE INCOME OF THE ASSESSEE OR ONLY THE PROFIT ELEMENT EMBEDDED THEREIN WAS TO ASCERTAIN WHETHER THE PURCHASES THEMSELVES WER E COMPLETELY BOGUS AND NON - EXISTENT OR THAT THE PURCHASES WERE ACTUALLY MADE BUT NOT FROM THE PARTIES FROM WHOM IT WAS CLAIMED TO HAVE BEEN MADE AND INSTEAD MAY HAVE BEEN PURCHASED FROM GREY MARKET WITHOUT PROPER BILLING OR DOCUMENTATION. IN THE PRESENT CA SE, CIT BELIEVED THAT WHEN AS A TRADER IN STEEL THE ASSESSEE SOLD CERTAIN QUANTITY OF STEEL, HE WOULD HAVE PURCHASED THE SAME QUANTITY FROM SOME SOURCE. WHEN THE TOTAL SALE IS ACCEPTED BY THE ASSESSING OFFICER, HE COULD NOT HAVE QUESTIONED THE VERY BASIS O F THE PURCHASES. IN ESSENCE THEREFORE, THE COMMISSIONER (APPEALS) BELIEVED ASSESSEE S THEORY THAT THE PURCHASES WERE NOT BOGUS BUT WERE MADE FROM THE PARTIES OTHER THAN THOSE MENTIONED IN THE BOOKS OF ACCOUNTS. THAT BEING THE POSITION, NOT THE ENTIRE PURCH ASE PRICE BUT ONLY PROFIT ELEMENT EMBEDDED IN SUCH PURCHASES CAN BE ADDED TO THE INCOME OF THE ASSESSEE. SO MUCH IS CLEAR BY DECISION OF THIS COURT. IN PARTICULAR, COURT HAS ALSO TAKEN A SIMILAR VIEW IN CASE OF COMMISSIONER OF INCOME TAX - IV VS. VIJAY M MIS TRY CONSTRUCTION LTD. VIDE ORDER DATED 10.01.2011 PASSED IN TAX APPEAL NO. 1090 OF 2009 AND IN CASE OF COMMISSIONER OF INCOME TAX - I VS. BHOLANATH POLY FAB PVT. LTD. VIDE ORDER DATED 23.10.2012 PASSED IN TAX APPEAL NO. 63 OF 2012. THE VIEW TAKEN BY THE TRIB UNAL IN CASE OF VIJAY PROTEINS PVT. LTD. VS. CIT REPORTED IN 58 ITD 428 CAME TO BE APPROVED. (EMPHASIS SUPPLIED) 14 ITA.NO. 7315, 7316 & 7317/MUM/2016 (A.YS: 2013 - 14, 2012 - 13 & 2011 - 12) M/S. VAMA INTERNATIONAL 19. SIMILARLY WHILE DEALING WITH AN IDENTICAL ISSUE, IN THE CASE OF CIT V. BHOLANATH POLY FAB (PURCHASE) LTD. ITA.NO.NO . 63 OF 2012, IN THE ORDER DATED 23/10/2012, THE HON'BLE HIGH COURT OF GUJARAT HAS HELD AS UNDER: - WE ARE OF THE OPINION THAT THE TRIBUNAL COMMITTED NO ERROR. WHETHER THE PURCHASES THEMSELVES WERE BOGUS OR WHETHER THE PARTIES FROM WHOM SUCH PURCHASES WE RE ALLEGEDLY MADE WERE BOGUS IS ESSENTIALLY A QUESTION OF FACT. THE TRIBUNAL HAVING EXAMINED THE EVIDENCE ON RECORD CAME TO THE CONCLUSION THAT THE ASSESSES DID PURCHASE THE CLOTH AND SELL THE FINISHED GOODS. IN THAT VIEW OF THE MATTER, AS NATURAL COROLLAR Y, NOT THE ENTIRE AMOUNT COVERED UNDER SUCH PURCHASE, BUT THE PROFIT ELEMENT EMBEDDED THEREIN WOULD BE SUBJECT TO TAX. THIS WAS THE VIEW OF THIS COURT IN THE CASE OF SANJAY OILCAKE INDUSTRIES V. CIT (2009] 316 ITR 274 (GUJ). SUCH DECISION IS ALSO FOLLOWED BY THIS COURT IN A JUDGMENT DATED AUGUST 16,2011, IN TAX APPEAL NO. 679 OF 2010 IN THE CASE OF CIT V. KISHORAMRUTLAL PATEL. IN THE RESULT, TAX APPEAL IS DISMISSED.' 20. IN VIEW OF THE FACTS AND CIRCUMSTANCES AND THE JUDICIAL PRONOUNCEMENTS CITED ABOVE; WH AT CAN BE DISALLOWED OR TAXED IN THE INSTANT CASE OF THE ALLEGED BOGUS PURCHASES IS ONLY THE EXCESS PROFIT ELEMENT EMBEDDED IN SUCH PURCHASES SHOWN TO HAVE BEEN MADE FROM M/S.DAKSH DIAMONDS. THE APPELLANT HAS NOT PLACED ANY EVIDENCE ON RECORD THAT THE GOOD S WERE PURCHASED FROM THE ABOVE PARTY AT ARMS' LENGTH PRICE. THE APPELLANT HAS ALSO NOT PLACED ON RECORD ANY COMPARABLE BILLS/INVOICES FOR PURCHASES OF SIMILAR ITEMS MADE FROM OTHER PARTIES TO ESTABLISH THAT THE PURCHASES FROM M/S.DAKSH DIAMONDS IN QUESTIO N WAS AT PAR WITH THE PURCHASES MADE FROM OTHER PARTIES DURING THE PERIOD UNDER CONSIDERATION. THE POSSIBILITY OF SUCH PURCHASES FROM UNREGISTERED DEALERS WITHOUT INVOICES CANNOT BE RULED OUT. HENCE POSSIBILITY OF SUCH PURCHASES FROM UNREGISTERED DEALERS W ITHOUT INVOICES CANNOT BE RULED OUT. IN VIEW OF THE ABOVE, THE CORRECTNESS OF THE PURCHASE PRICES MENTIONED ON SUCH BILLS/INVOICES ISSUED BY M/S.DAKSH DIAMONDS IN QUESTION CANNOT BE ACCEPTED AND SOME ADDITIONAL PROFIT NEEDS TO BE ESTIMATED ON SUCH PURCHASE S MADE FROM M/S.DAKSH DIAMONDS. AS THE PURCHASES INVOICES ISSUED AGAINST THE ALLEGED BOGUS PURCHASES REMAINS UNVERIFIABLE, AND PART OF THE PROFIT ELEMENT ON THE PURCHASES MADE FROM M/S.DAKSH DIAMONDS ALREADY INCLUDED IN THE ABOVE GROSS PROFIT RATE SHOWN FO R THE YEAR UNDER CONSIDERATION, IT WOULD BE FAIR AND JUST, IF THE ADDITIONAL GROSS PROFIT @ 12.5% IS APPLIED ON SUCH 15 ITA.NO. 7315, 7316 & 7317/MUM/2016 (A.YS: 2013 - 14, 2012 - 13 & 2011 - 12) M/S. VAMA INTERNATIONAL TOTAL ALLEGED BOGUS PURCHASES AMOUNTING TO RS. 1,05,18,970/ - , THE ADDITIONAL GROSS PROFIT ON SUCH PURCHASES WOULD COME TO RS. 13,14,871/ - W HICH NEED TO BE ADDED TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF ALLEGED BOGUS PURCHASES FOR THE YEAR UNDER CONSIDERATION AND THE BALANCE ADDITION MADE AMOUNTING TO RS. 92,04,099/ - IS HEREBY DELETED. THE ASSESSING OFFICER IS DIRECTED ACCORDINGLY. HENCE, GR OUNDS NO. 1 & 2 ARE PARTLY ALLOWED. 17. AS COULD BE SEEN FROM THE ABOVE THE LD.CIT(A) DID NOT AGREE WITH THE ASSESSING OFFICER THAT THE PURCHASES BY THE ASSESSEE ARE BOGUS/NON - GENUINE. HOWEVER, THE LD.CIT(A) OBSERVED THAT PURCHASES MADE CANNOT BE DOUBTED AND THERE IS A MAJOR FLAW IN THESE TRANS ACTIONS IS THE UNVERIFIABLE NATURE OF TRANSACTIONS AS THE PARITIES ARE NOT FOUND AVAILABLE IN THE GIVEN ADDRESS. HOWEVER, WE SEE THAT THE PARTIES HAVE RESPONDED IN THESE CASES FOR THE NOTICES ISSUED U/S. 133(6) OF THE ACT, THEY HAVE FILED LEDGER ACCOUNT O F THE ASSESSEE IN THEIR BOOKS OF ACCOUNTS, COPIES OF SALES INVOICES ISSUED BY THEM, THEIR BANK STATEMENTS REFLECTING THE PAYMENTS MADE BY THE ASSESSEE TO THEM, COPIES OF ACKNOWLEDGEMENT OF INCOME - TAX RETURNS FILED BY THEM, AUDITED PROFIT & LOSS A/C AND BAL ANCE SHEETS TO SHOW THAT THE TRANSACTIONS OF SALES MADE TO THE ASSESSEE ARE GENUINE. ON A CAREFUL CONSIDERATION OF THE SUBMISSIONS MADE BY THE ASSESSEE , WE FIND CONSIDERABLE FORCE IN THE SUBMISSIONS NOT TO TREAT THE PURCHASES MADE BY THE ASSESSEE FROM TH E PARTIES AS NON - GENUINE/BOGUS. 18. THE REASON FOR TREATING THESE PURCHASES AS NON - GENUINE /BOGUS IS THE STATEMENTS GIVEN BY BHANWARLAL JAIN GROUP AND NON - SUBMISSION OF 16 ITA.NO. 7315, 7316 & 7317/MUM/2016 (A.YS: 2013 - 14, 2012 - 13 & 2011 - 12) M/S. VAMA INTERNATIONAL DELIVERY INVOICES BY THE ASSESSEE. IT IS THE SUBMISSION OF THE ASSESSEE THAT THE STATEMENT S GIVEN BY BHANWARLAL JAIN GROUP HAVE BEEN RETRACTED BY THEM SUBSEQUENTLY AND THERE IS A PRACTICE OF HAND DELIVERY OF SUCH PRECIOUS AND LIGHT WEIGHING MATERIALS LIKE DIAMONDS IS PREVAILING IN THE INDUSTRY. THEREFORE, NO ADVERSE CONCLUSION CAN BE DRAWN MER ELY DUE TO ABSENCE OF DOCUMENTS PROVING DELIVERIES. THE ANALYSIS FURNISHED BEFORE US ON THE GROSS PROFIT MARGIN SHOWN BY THE ASSESSEE ALSO SUGGEST THAT ASSESSEE IS CONSISTENT IN SHOWING OVERALL GROSS PROFIT AROUND 6% IN THESE ASSESSMENT YEARS. THE AVERAG E GROSS PROFIT SHOWN BY THE ASSESSEE STOOD AT 6.04% FOR THESE ASSESSMENT YEARS. THEREFORE EVEN IF WE GO BY THE SUBMISSIONS OF THE LD.DR THAT THE PROFIT ELEMENT SHOULD BE ESTIMATED AT 6% AS PER THE CBDT CIRCULAR THE ASSESSEE HAS ALREADY SHOWN 6.04% OF OVER ALL GROSS PROFIT DURING THESE THREE ASSESSMENT YEARS. THE DISALLOWANCE/ESTIMATION OF PROFIT ON PURCHASES BY TREATING THEM AS BOGUS CANNOT BE MADE ONLY ON THE STATEMENTS RECORDED FROM THIRD PARTIES, ESPECIALLY WHEN THOSE PARTIES HAVE RESPONDED TO THE NOTIC E ISSUED U/S.133(6) OF THE ACT BY FILING ALL NECESSARY DOCUMENTS TO PROVE THAT THEY HAVE MADE SALES TO THE ASSESSEE. IT IS ALSO THE SUBMISSION OF THE ASSESSEE THAT NONE OF THE IMPUGNED PARTIES HAVE BEEN DECLARED AS HAWALA DEALERS OR SUSPICIOUS DEALERS BY THE SALES TAX DEPARTMENT AND THE GENUINENESS OF THE PURCHASES HAVE BEEN DOUBTED MERELY ON THE BASIS 17 ITA.NO. 7315, 7316 & 7317/MUM/2016 (A.YS: 2013 - 14, 2012 - 13 & 2011 - 12) M/S. VAMA INTERNATIONAL OF THE STATEMENT GIVEN BY THE BHANWARLAL JAIN GROUP. THE ASSESSEE HAS FURNISHED ALL NECESSARY EVIDENCE TO PROVE THE GENUINENESS OF THE PURCHASES, THE PARTI ES HAVE ALSO RESPONDED TO THE NOTICES U/S. 133(6) OF THE ACT BY FILING NECESSARY EVIDENCE AS TO PROVE THAT THE PURCHASES ARE GENUINE. THUS THE ASSESSEE DISCHARGED THE ONUS TO PROVE THE GENUINENESS OF THE TRANSACTIONS MADE BY THE ASSESSEE FROM THE IMPUGNED PARTIES. THE ASSESSING OFFICER COMPLETELY FAILED TO MAKE FURTHER ENQUIRIES IN THESE CASES. THE DOCUMENTS FURNISHED BY THE SUPPLIER OF THE GOODS HAVE NOT BEEN DISPROVED BY THE ASSESSING OFFICER IN THESE MATTERS. 19. WE ALSO FIND THAT THE COORDINATE BENCH IN THE CASE OF INDO UNIQUE TRADING PVT LTD. V. DCIT IN ITA.NO. 6341/MUM/2016 CONSIDERED ALMOST AN IDENTICAL SITUATION WHEREIN THE SUPPLIERS HAVE RESPONDED TO THE NOTICES ISSUED U/S. 133(6) OF THE ACT AND CONFIRMED THE TRANSACTION BY FILING VARIOUS DETAILS BEFORE THE ASSESSING OFFICER, IN SUCH CIRCUMSTANCES THE COORDINATE BENCH ACCEPTED THE CONTENTIONS OF THE ASSESSEE THAT THE PURCHASES CANNOT BE TREATED AS BOGUS SIMPLY RELYING ON THE STATEMENTS IN THE CASE OF BHANWARLA L JAIN GROUP . WHILE HOLDING SO THE COORDINATE BENCH OBSERVED AS UNDER: - 10. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORD. WE NOTICE THAT THE ASSESSING OFFICER HAS REOPENED THE ASSESSMENT FOR THE SECOND TIME AFTER EXPIRY OF FOUR YEARS FROM THE END OF THE 18 ITA.NO. 7315, 7316 & 7317/MUM/2016 (A.YS: 2013 - 14, 2012 - 13 & 2011 - 12) M/S. VAMA INTERNATIONAL ASSESSMENT YEAR, ON THE BASIS OF INFORMATION RECEIVED FROM THE INVESTIGATION WING ABOUT THE BOGUS NATURE OF TRANSACTIONS ENTERED BY SHRI BHANWARLAL JAIN GROUP. EVEN THOUGH THE AO HAS MENTIONED THE REASONS THAT THERE WAS FAILURE ON THE PART OF T HE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT, YET HE HAS NOT SPECIFIED THE MANNER OF FAILURE. 11. ON THE CONTRARY, WE NOTICE THAT THE ASSESSEE HAS PROVED THE GENUINENESS OF PURCHASES BY OBTAINING CONFIRMATION LETTERS IN THE FORM OF AFFIDAVITS FROM ALL THE SUPPLIERS. THE AO HAS DONE INDEPENDENT ENQUIRY DURING THE COURSE OF ASSESSMENT PROCEEDINGS BY ISSUING NOTICES U/S 133(6) OF THE ACT TO ALL THE SUPPLIERS. WE NOTICE THAT THE NOTICES WERE DULY SERVED UPON THE SUPPLIERS AND THEY HAVE ALSO RESPONDED BY FILING THEIR REPLIES DULY CONFIRMING THE TRANSACTIONS. THE AO HAS REJECTED THE REPLIES BY OBSERVING THAT THE REPLIES LACKED DETAILS AND THEY DID NOT MENTION ABOUT THE NATURE OF TRANSACTIONS. IN OUR VIEW, THE SAID OBSERVATION S ARE VAGUE IN NATURE. ON THE CONTRA RY, A PERUSAL OF THE AFFIDAVITS FURNISHED BY THE SUPPLIERS WOULD SHOW THAT THEY HAVE CONFIRMED THE SALES EFFECTED BY THEM TO THE ASSESSEE. FURTHER THEY HAVE ALSO VERIFIED AND SIGNED THE LEDGER ACCOUNT COPIES AS AVAILABLE IN THE BOOKS OF ACCOUNT. WHEN THE SUPPLIERS CONFIRM THAT THE TRANSACTIONS OF SALES MADE BY THEM TO THE ASSESSEE ARE GENUINE, THAT TOO, IN RESPONSE TO THE NOTICES ISSUED BY THE AO U/S 133(6) OF THE ACT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IN OUR VI EW, THE SAID REPLIES CANNOT BE REJECTED WITHOUT BRINGING ON RECORD ANY MATERIAL TO SHOW THAT THEY ARE NOT TRUE. WE NOTICE THAT THE AO DID NOT BRING ANY MATERIAL ON RECORD AND HE SIMPLY RELIED UPON THE REPORT GIVEN BY THE INVESTIGATION WING. AS PER LD A.R, THE STATEMENT GIVEN BY SHRI BHANWARLAL JAIN IS A GENERAL STATEMENT ONLY. THE ASSESSEE, AS STATED EARLIER, HAS FURNISHED CONFIRMATION OF LEDGER ACCOUNTS AND ALSO AFFIDAVITS TO PROVE THE GENUINENESS OF TRANSACTIONS. WE NOTICE THAT THE AO COULD NOT CONTROVERT THOSE DOCUMENTS. 12. IN VIEW OF THE FOREGOING DISCUSSIONS, WE ARE OF THE VIEW THAT THE ASSESSEE HAS DULY DISCHARGED THE BURDEN TO PROVE THE GENUINENESS OF PURCHASES. ON THE CONTRARY, THE AO HAS SIMPLY RELIED UPON THE REPORT GIVEN BY THE INVESTIGATION WING . IN THIS VIEW OF THE MATTER, WE ARE OF THE VIEW THAT NO ADDITION IS CALLED FOR ON ACCOUNT OF ALLEGED BOGUS PURCHASES. ACCORDINGLY, WE SET ASIDE THE ORDER PASSED BY LD CIT(A) ON THIS ISSUE AND DIRECT THE AO TO DELETE THE IMPUGNED ADDITION . 20. IN VIEW OF WHAT IS DISCUSSED ABOVE, WE ARE OF THE VIEW THAT THE ASSESSEE HAS DULY DISCHARGED ITS BURDEN OF PROVING THE GENUINENESS OF THE PURCHASES AND THE ASSESSING OFFICER WITHOUT MAKING PROPER 19 ITA.NO. 7315, 7316 & 7317/MUM/2016 (A.YS: 2013 - 14, 2012 - 13 & 2011 - 12) M/S. VAMA INTERNATIONAL INVESTIGATION, SIMPLE RELIED ON THE STATEMENTS OF THIRD PARTY TO TREAT THE PURCHASES AS BOGUS. ASSESSING OFFICER COULD NOT PROVE THAT THE INFORMATION FURNISHED BY THE SUPPLIERS ARE NOT GENUINE SO AS TO TREAT THE SALES MADE BY THEM ARE ONLY BOGUS. IN THE CIRCUMSTANCES , WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND DEL ETE THE DISALLOWANCE MADE TOWARDS BOGUS PURCHASES FOR ALL THESE ASSESSMENT YEARS I.E. 2011 - 12 TO 2013 - 14 WHICH ARE UNDER APPEAL BEFORE US. 21. IN THE RESULT, APPEAL S OF THE ASSESSEE ARE ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THE 15 TH FEBRUARY, 2018. SD/ - SD/ - ( RAJESH KUMAR ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 15 / 02/2018 GIRIDHAR , SPS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER, (ASSTT. REGISTR AR) ITAT, MUM