ITO 14(3)(2), MUMBAI V. NEETA TEXTILES, MUMBAI

ITA 7337/MUM/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0640 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 13-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Bogus purchase; Accommodation entries
• Section: 143(3); 133A; 131; 69; 148

Judgement Text

B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER ./ I.T.A. NO.6138 /MUM/2013 ( / ASSESSMENT YEARS 2005-06) M/S NEETA TEXTILES, 685, GOVIND CHOWK, M.J. MARKET, MUMBAI 400 002. / VS. THE INCOME TAX OFFICER WD- 14(3)(2), MUMBAI. ./ PAN : AAAFN0729R ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO.7335 /MUM/2013 ( / ASSESSMENT YEARS 2005-06) THE INCOME TAX OFFICER WD- 14(3)(2), MUMBAI. / VS. M/S NEETA TEXTILES, 685, GOVIND CHOWK, M.J. MARKET, MUMBAI 400 002. ./ PAN : AAAFN0729R ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO.6139 /MUM/2013 ( / ASSESSMENT YEARS 2007-08) M/S NEETA TEXTILES, 685, GOVIND CHOWK, M.J. MARKET, MUMBAI 400 002. / VS. THE INCOME TAX OFFICER WD- 14(3)(2), MUMBAI. ./ PAN : AAAFN0729R ( / APPELLANT ) .. ( / RESPONDENT ) ITA 6138/M/13, ITA 7335/M/13, ITA 6139/M/13, ITA 7336 /M/13, ITA 6140/M/13 & ITA 733 7/M/13 2 ./ I.T.A. NO.7336 /MUM/2013 ( / ASSESSMENT YEARS 2007-08) THE INCOME TAX OFFICER WD- 14(3)(2), MUMBAI. / VS. M/S NEETA TEXTILES, 685, GOVIND CHOWK, M.J. MARKET, MUMBAI 400 002. ./ PAN : AAAFN0729R ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO.6140 /MUM/2013 ( / ASSESSMENT YEARS 2008-09) M/S NEETA TEXTILES, 685, GOVIND CHOWK, M.J. MARKET, MUMBAI 400 002. / VS. THE INCOME TAX OFFICER WD- 14(3)(2), MUMBAI. ./ PAN : AAAFN0729R ( / APPELLANT ) .. ( / RESPONDENT ) ./ I.T.A. NO.7337 /MUM/2013 ( / ASSESSMENT YEARS 2008-09) THE INCOME TAX OFFICER WD- 14(3)(2), MUMBAI. / VS. M/S NEETA TEXTILES, 685, GOVIND CHOWK, M.J. MARKET, MUMBAI 400 002. ./ PAN : AAAFN0729R ( / APPELLANT ) .. ( / RESPONDENT ) A PPELLANT BY SHRI BHUPENDRA SHAH R E SPONDENT BY : SHRI YOGESH KAMAT / DATE OF HEARING : 14-05-2015 / DATE OF PRONOUNCEMENT : 27-05-2015 [ ITA 6138/M/13, ITA 7335/M/13, ITA 6139/M/13, ITA 7336 /M/13, ITA 6140/M/13 & ITA 733 7/M/13 3 !' / O R D E R PER BENCH : THE AFORESAID APPEALS HAVE BEEN FILED BY THE ASSESS EE AS WELL AS REVENUE AGAINST SEPARATE IMPUGNED ORDER OF EVEN DAT E 02-09-2013, PASSED BY THE LD. CIT(A)- 25, MUMBAI FOR QUANTUM OF ASSESS MENT PASSED U/S 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 FOR THE ASSE SSMENT YEARS 2005-06, 2007-08 AND 2008-09. 2. SINCE COMMON ISSUES ARE INVOLVED IN ALL THESE AP PEALS, THEREFORE, THEY WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY W AY OF THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. FOR READY REFERE NCE, THE CROSS 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 CAS E 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 OFF TO RS. 1,17,620/-) OUT OF THE TOTAL ADDITION OF RS.11,76,2 42/= MADE BY LD. A.O. AS ' UNEXEPTED/UNPROVED' PURCHASE/INVESTMENT I N PURCHASE AS PER SECTION 69 OF THE INCOME TAX ACT, 1961. 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. 2005 -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 WE RE ONLY 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 M ADE FROM 0 THROUGH SHRI RAKESHKUMAR GUPTA AND HIS FAMILY MEMBERS ARE B OGUS, 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 ACCOU NT OF BOGUS ITA 6138/M/13, ITA 7335/M/13, ITA 6139/M/13, ITA 7336 /M/13, ITA 6140/M/13 & ITA 733 7/M/13 4 PURCHASES MADE IN CASH FROM THE OPEN MARKET OUT OF UNACCOUNTED CASH, IN VIEW OF THE DECISION HELD BY THE HON'BLE I TAT'S C-BENCH, AHMEDABAD, 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 IT S SISTER CONCERN/GROUP CONCERNS, WHEREIN THE TRIBUNAL HAVE DECIDED THE ISS UE OF ALLEGED BOGUS PURCHASES IN FAVOUR OF THE ASSESSEE. IN SUPPORT, T HE LD. COUNSEL FOR THE ASSESSEE 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 & 4351/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 4015 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 4024/M/1 2, 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 T HE TRIBUNAL. 6. BRIEF FACTS OF THE CASE ARE THAT, THE ASSESSEE I S A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS AS DEALERS AND MERCHANT OF CLOTH MATERIALS. THE RETURN OF INCOME WAS FILED ON 25-7-2005. IN THE CA SE OF ONE OF THE SUPPLIERS OF THE ASSESSEE FIRM SHRI RAKESH KUMAR M. GUPTA (PR OPRIETOR OF MANOJ MILLS) AND GROUP CONCERNS, A SURVEY U/S 133 A OF THE ACT W AS CARRIED OUT ON 13/14- 2-2009. DURING THE COURSE OF SURVEY, IN THE STATEM ENT RECORDED, SHRI RAKESH KUMAR M. GUPTA STATED THAT HE WAS PROVIDING ACCOMMO DATION SALE BILL FOR THE PURCHASES IN THE NAME OF THESE PROPRIETARY CONCERN S, SHRI RAKESHKUMAR M. GUPTA, PROP. OF M/S MANOJ MILLS, SMT. HEMA R. GUPTA , PROP. OF M/S SHREE ITA 6138/M/13, ITA 7335/M/13, ITA 6139/M/13, ITA 7336 /M/13, ITA 6140/M/13 & ITA 733 7/M/13 5 RAM SALES AND SYNTHETICS AND SHRI MOHIT R. GUPTA, P ROP. 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 FILED BY HIM AND HIS FAMILY MEMBERS WHO WERE PROPRIETORS OF SUCH CONCERN. THE COPY OF HIS AFFIDA VIT IS APPEARING IN THE PAPER BOOK AT PAGE NO. 68 & 69. BASED ON THE INFOR MATION GATHERED DURING THE SURVEY OPERATION, THE ASSESSEES CASE WAS REOPE NED U/S 147 OF THE ACT BY ISSUING NOTICE DATED 26-2-2010 U/S 148 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 ) AFTER CONSIDERING THE VARIOUS SUBMISSIONS OF THE ASSESSEE, AS WELL AS THE DETAILS OF PURCHASES AND SALES HELD THAT 10% OF SUCH PURCHASES SHOULD BE ADD ED. THE RELEVANT 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 CIRCUMS TANCE OF THE CASE. ON PLAIN READING OF THE ASSESSMENT ORDER, I FIND TH AT THE AO HAS BASICALLY RELIED ON THE STATEMENTS RECORDED OF SHRI RAKESHKUMAR M. GUPTA & OTHERS DURING THE COURSE OF SURVEY ACTION U /S 133A AND SUBSEQUENTLY RE-AFFIRMED ON OATH U/S 131 OF THE ACT , TO MAKE ADDITIONS IN HANDS OF PURCHASER PARTY I.E. THE APPELLANT IN T HIS CASE. THE SAID ADDITIONS ARE MADE BASED ON DOCUMENTS IMPOUNDED DUR ING SURVEY PROCEEDINGS TO ARRIVE AT TOTAL PURCHASES MADE BY AP PELLANT DURING THE YEAR AT RS. 20,10,972/-. HOWEVER, THE APPELLANT HAS SUBMITTED THE BREAK-UP OF ITS PURCHASES FROM GUPTA PARTY (RS. 11, 76,242/- & NON- GUPTA PARTY (RS. 11,71,970/-) AGGREGATING TO RS. 23 ,48,212/-, WHICH FIGURE ALSO TALLIES WITH THE PURCHASE FIGURE SHOWN IN ITS P&L ACCOUNT. FURTHER, THE APPELLANT HAS SUBMITTED LEDGER STATEME NT OF GUPTA PARTY (M/S ASTHA SILK INDUSTRIES) IN ITS BOOKS SHOWING TO TAL PURCHASES AT RS. 11,76,242/-. IN THESE CIRCUMSTANCES, EVEN ASSUMING THE ENTIRE PURCHASES FROM GUPTA PARTY IS TO BE TREATED AS BOGU S, THE ADDITIONS ON THAT ACCOUNT CANNOT EXCEED RS. 11,76,242/-. 6.1 FURTHER OBSERVE THAT THE APPELLANT HAS NOT MAIN TAINED THE STOCK REGISTER. HOWEVER, SINCE IT HAS SHOWN SALES O F RS. 25.44 LAKHS, AS AGAINST PURCHASES OF RS. 23.48 LAKHS IN I TS P&L ACCOUNT, IT HAS TO BE ACCEPTED THAT THERE CAN BE NO SALES WITHOUT CORRESPONDING PURCHASES, AND WHEN THE SALE OF APPEL LANT IS NOT ITA 6138/M/13, ITA 7335/M/13, ITA 6139/M/13, ITA 7336 /M/13, ITA 6140/M/13 & ITA 733 7/M/13 6 DISPUTED, THE ADDITIONS OF ENTIRE ALLEGED PURCHASES IS ALSO NOT JUSTIFIED. 6.2 A LOGICAL CONCLUSION WHICH MAY BE DRAWN IN SUCH SITUATION IS THAT THE APPELLANT HAS RECORDED SOME S ALES IN ITS BOOKS OF ACCOUNTS WHICH MATERIALS MIGHT HAVE BEEN P URCHASED BY IT IN GREY MARKET WITHOUT BILLS, AND TO REGULARI ZE SUCH PURCHASES IN GREY MARKET, THE APPELLANT MIGHT HAVE TAKEN ACCOMMODATION BILLS FROM THE SAID PARTIES FOR PURCH ASE OF SPECIFIED MATERIAL. THE AO HAS NOT DENIED SUCH POSS IBILITY BY QUOTING THE WORDS 'HAWALA PURCHASES/ OR TO ACCOMMOD ATE THE PURCHASES MADE OUT OF THE BOOKS' IN PARA 17 OF THE ASSESSMENT ORDER. IN THESE CIRCUMSTANCES, THE ADDITIONS CAN ON LY BE MADE AT CERTAIN PERCENTAGE OF GP/ NP OR AT AN ADHOC AMOUNT, IN CONSONANCE WITH THE APPELLATE ORDERS OF VARIOUS CIT S(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 C ASE AS A WHOLE, I AM OF THE CONSIDERED VIEW THAT THE CAUSE O F JUSTICE WOULD BE MET BY MAKING ADDITION AT 10% OF SUCH PURC HASES IN ORDER TO FILL IN THE GAP OF DIFFERENCE OF GP IN REC ORDING THE SAID PURCHASES AS WELL TO PLUG ANY LEAKAGE OF REVENUE. T HE AO HAS MADE ADDITIONS OF ALLEGED PURCHASES FROM GUPTA PART Y AT RS. 20,10,972/-, HOWEVER AS DISCUSSED ABOVE, THE SAID P URCHASES ARE ACCEPTED AT RS. 11,76,242/-. HENCE, THE ADDITIO NS IS RESTRICTED TO 10% OF SAID PURCHASES OF RS. 11,76,24 2/- I.E. RS. OF RS. 1,17,624/- AND THE BALANCE ADDITION OF RS. 18,9 3,348/- (I.E. 20,10,972/- - 1,17,624/- IS DELETED. 7. AGAINST THIS, BOTH ASSESSEE AS WELL AS REVENUE H AVE 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 FIND THAT FIRST OF ALL, SHRI RAKESH KUMAR M. GUPTA HAS RETRACTED HIS S TATEMENT BEFORE THE A.O. AND ALSO FILED AFFIDAVIT ADMITTING THAT SALES MADE TO THE ASSESSEE ARE GENUINE. THE ASSESSEE HAS ALSO PRODUCED EVIDENCES LIKE COPY OF CONFIRMED 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 N O ADVERSE INFERENCE SHOULD BE DRAWN ON THE BASIS OF STATEMENT RECORDED WITHOUT REFERENCE TO THE ITA 6138/M/13, ITA 7335/M/13, ITA 6139/M/13, ITA 7336 /M/13, ITA 6140/M/13 & ITA 733 7/M/13 7 ASSESSEE. NO FURTHER ENQUIRY WAS CARRIED OUT IN TH E CASE OF THE ASSESSEE OR SHRI RAKESH KUMAR M. GUPTA DESPITE THE FACT THAT ST ATEMENT WAS SUBSEQUENTLY RETRACTED BY HIM. WE FIND THAT EXACTLY SIMILAR ISSUE ON SIMILAR SET OF FACTS HAD COME UP FOR CONSIDERATION BEFORE T HE 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 EVIDENCES, DELETED THE ENTIRE ADDITIONS MADE BY THE A.O. FOR THE SAKE OF READY REFERENCE, THE RELEVANT PORTI ON OF THE DECISION OF M/S HARSHADKUMAR & COMPANY IS REPRODUCED HEREUNDER:- 7. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES A ND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERVED THAT A SIMILAR ISSUE INVOLVING IDENTICAL FACTS HAS ALREADY BEEN CONSIDERED AND DECIDED IN FAVOUR OF THE ASSESSEE BY THE MUMBAI I BENCH OF THIS TRIBUNAL IN THE CASE OF JEETENDRA HARSHADKUMAR TEXTILES (ITA NO. 771 & 2211/MUM/2011 DATED 21-11-2 012) VIDE PARA 8 & 8.1 WHICH READ AS UNDER:- 8. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS IN THE LIGHT OF MATERIAL PLACED BEFORE US. IT WILL BE RELEVANT TO REPRODUCE THE LETTER RECEIVED BY THE AO FROM SHRI RAKESH KUMAR GUPTA, W HICH IS ALSO REPRODUCED IN THE ASSESSMENT ORDER: 1 AM IN RECEIPT OF YOUR SUMMONS U/S. 131 OF THE I. T.ACT. 1961 IN THE CASE OF M/S. JITENDRA HARSHAD KUMAR TEX TILE PVT. LTD. ASKING ME TO ATTEND BEFORE YOUR GOODSELF WITH THE D ETAILS OF MY ACCOUNT WITH THE SAID M/S. JITENDRA HARSHAD KUMAR T EXTILE PVT. LTD. FOR A.Y.2002-03 & 2007-08. AS YOU ARE AWARE THAT MY ASSESSING OFFICER HAD RECO RDED ALLEGED STATEMENT U/S. 133A AND 131 OF THE I.T.ACT. 1961 1 HAVE BEEN RECEIVING WITNESS SUMMONS FROM ALL FOUR CORNERS OF THE CITY O N THE GROUND THAT I HAVE GIVEN ACCOMMODATION BILL, THOUGH I HAVE DENIED THE CONTENT OF THE STATEMENTS RECORDED BY A.O. U/S. 133A & 131 VIDE MY LETTER DATED 27.4.2009 AND MY AFFIDAVIT DATED 20.2.2009 SUBMITTE D TO WARD 14(3)(2). IT IS PHYSICALLY IMPOSSIBLE FOR ME TO ATTEND 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 . LTD. IS CONCERNED. I HAVE ALREADY GIVEN MY AFFIDAVIT WHEREIN I HAVE SP ECIFICALLY STATED THAT I HAVE SOLD THE GOODS TO M/S. JITENDRA HARSHAD KUMAR TEXTILES P. LTD. AND ITA 6138/M/13, ITA 7335/M/13, ITA 6139/M/13, ITA 7336 /M/13, ITA 6140/M/13 & ITA 733 7/M/13 8 THE CONSIDERATION IS RECEIVED TO ME BY CROSS ORDER CHEQUE. COPY OF THE SAID LEDGER ACCOUNT IS ALREADY SUBMITTED THE DEPART MENT. 8.1 FROM THE ABOVE LETTER IT IS CLEAR THAT THE SAME WAS WRITTEN IN RESPONSE TO NOTICE ISSUED BY THE AO. NOT ONLY SHRI RAKESH KUMAR GUPTA HAS STATED THAT HE HAS RETRACTED FROM THE STATEMENT RECORDED DURING THE SURVEY BUT ALSO FILED AN AFFIDAVIT DATED 20/2/2009 AND LETTER DATED 27/4/2009 TO DENY THE STATEMENT MADE DURING THE SUR VEY UNDER SECTION 133A. HE HAS FURTHER CONFIRMED THAT THE SALES MAD E BY THE ASSESSEE WERE EFFECTED AND THE CONSIDERATION WAS RECEIVED BY CROSS ORDER CHEQUES. THUS IT IS CLEAR THAT THERE IS NO MATERIA L ON RECORD TO SAY THAT THE PURCHASES MADE BY THE ASSESSEE FROM THE SAID C ONCERN WERE BOGUS EXCEPT THE GENERAL STATEMENT RECORDED BY THE DEPAR TMENT IN THE CASE OF SHRI RAKESH KUMAR GUPTA, WHICH WAS LATER ON RETRAC TED. IN ABSENCE OF ANY MATERIAL BROUGHT ON RECORD AGAINST THE SUBMISS IONS MADE BY SHRI RAKESH KUMAR GUPTA IN HIS LETTER DATED 20/12/2009 F ILED BEFORE THE AO OF THE ASSESSEE THE ADDITION, IF ANY, MADE IN THE CASE OF THE ASSESSEE WILL BE BASED ON PRESUMPTION ONLY AND IT C ANNOT BE SUSTAINED IN THE EYES OF LAW. AS AGAINST THAT ASSESSEE HAS S UBMITTED VARIOUS EVIDENCES TO SHOW THAT THE ACTUAL DELIVERY OF THE G OODS WAS RECEIVED BY THE ASSESSEE FROM THE SAID PARTY WHICH HAS NOT BEEN DISCARDED BY THE AO. THE ADDITION SUSTAINED BY LD. CIT(A) IS ALSO ON PRESUMPTION BASIS. THEREFORE, KEEPING IN VIEW THE FACTS AND CIRCUMSTAN CES OF THE CASE, WE ARE OF THE OPINION THAT ADDITIONS MADE BY THE AO DE SERVES TO BE DELETED IN ITS ENTIRETY. WE DECIDE ACCORDINGLY. 8. THE ABOVE DECISION OF THE TRIBUNAL IN THE CASE O F 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 T O 3953/MUM/2012 AND ITA NO. 4012 TO 4015 AND 4020 TO 4021/MUM/2012 DATED IST OCTOBER, 2013). AS THE ISSU E INVOLVED IN THE PRESENT CASE AS WELL AS ALL THE MATERIAL FAC TS RELEVANT THERETO ARE SIMILAR TO THE CASE OF JEETENDRA HARSHADKUMAR T EXTILES AND M/S PRAMIT TEXTILES (SUPRA), WE RESPECTFULLY FOLLOW THE ORDERS OF THE CO-ORDINATE BENCHES OF THIS TRIBUNAL IN THE SAID CA SES AND DELETE THE ENTIRE ADDITION MADE BY THE A.O. ON ACCOUNT OF UNEXPLAINED/UNPROVED PURCHASES IN ALL THE FOUR YEAR S UNDER CONSIDERATION. GROUND NO. 1 OF ASSESSEES APPEAL F OR ASSESSMENT YEARS 2005-06, 2006-07, 2007-08 & 2008-09 IS ACCORD INGLY ALLOWED WHEREAS GROUND NO. 1 OF THE REVENUES APPEA L FOR ASSESSMENT YEARS 2006-07, 2007-08 AND 2008-09 IS DI SMISSED. 9. SIMILAR FINDING HAS BEEN GIVEN BY THE TRIBUNAL I N THE CASE OF PRAMIT TEXTILES AND M/S C. CHOTALAL & CO. (SUPRA). IT HAS BEEN INFORMED BYTHE LD. ITA 6138/M/13, ITA 7335/M/13, ITA 6139/M/13, ITA 7336 /M/13, ITA 6140/M/13 & ITA 733 7/M/13 9 COUNSEL FOR THE ASSESSEE THAT IN OTHER CASES ALSO W HEREIN SIMILAR ADDITION WERE MADE ON ACCOUNT OF STATEMENT OF SHRI RAKESH KR . M. GUPTA HAVE ALSO BEEN DELETED. SINCE, THE FINDING OF THE TRIBUNAL IN ALL THE CASES ARE BASED ON SIMILAR SET OF FACTS, THEREFORE, RESPECTFULLY FOLLO WING THE SAME, WE DIRECT THE A.O. TO DELETE THE ENTIRE ADDITION OF PURCHASES AND CONSEQUENTLY THE GROUND RAISED BY THE ASSESASEE IS ALLOWED WHEREAS THE GROU NDS RAISED IN REVENUES APPEAL ARE DISMISSED. 10. IN ASSESSMENT YEARS 2007-08 AND 2008-09 ALSO, S IMILAR GROUNDS HAVE BEEN RAISED AND SIMILAR FACTS ARE PERMEATED IN THES E YEARS, THEREFORE, THE AFORESAID FINDING GIVEN ABOVE WILL APPLY AND ACCORD INGLY, THE ADDITION MADE ON ACCOUNT OF PURCHASES IN BOTH THE YEARS ARE DELETED. 11. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLO WED WHEREAS APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH MAY, 2015. !' # $% &! ' 27-05-2015 ( ) SD/- SD/- (G.S. PANNU) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER $ 4 MUMBAI ; &! DATED 27-05-2015 .;../ RK RKRK RK , SR. PS ITA 6138/M/13, ITA 7335/M/13, ITA 6139/M/13, ITA 7336 /M/13, ITA 6140/M/13 & ITA 733 7/M/13 10 ! '#$% &%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. < () / THE CIT(A) CONCERNED,, MUMBAI 4. < / CIT -CONCERNED, MUMBAI 5. ?@( ;;AB , AB , $ 4 / DR, ITAT, MUMBAI B BENCH 6. (DE F / GUARD FILE. ' / BY ORDER, ? ; //TRUE COPY// (/') * ( DY./ASSTT. REGISTRAR) , $ 4 / ITAT, MUMBAI