A.C.I.T.Circle-42, Kolkata, Kolkata V. M/S. M.M. Exports, Kolkata

ITA 959/KOL/2009

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3401 (ITAT-KOLKATA)
• Duration Of Justice: 6 year(s) 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-01-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2000-2001
• Appeal Filed On: 02-06-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: UDAY KUMAR SARKAR JCITSRDR
• Assessee Lawyers: S M SURANA
• Keywords: Bogus purchase; Retrospective amendment; Fair market value; Corroborative evidences; Assessment record
• Section: 143(3); 80HHC; 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 959 / KOL / 20 09 ASSESSMENT YEAR :2000-01 ACIT, CIRCLE-42, 18,RABINDRA SARANI, PODDAR COURT, 4 TH FLOOR, KOLKATA-700001 V/S . M/S M.M. EXPORTS 22, MADAN MOHON TOLA STREET, KOLKATA 700 005 [ PAN NO.AAFFM 4426 M ] /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI UDAY KUMAR SARKAR, JCIT-SR-DR /BY RESPONDENT SHRI S.M. SURANA, ADVOCATE /DATE OF HEARING 01-12-2015 /DATE OF PRONOUNCEMENT 20-01-2016 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY ASSESSEE IS AGAINST THE ORDER OF CO MMISSIONER OF INCOME TAX (APPEALS)-XII, KOLKATA IN APPEAL NO.323/ XII/CIR-42/07-08 DATED 26.03.2009. ASSESSMENT WAS FRAMED BY ACIT, CI RCLE-42, KOLKATA U/S 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (HERE INAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 28.12.2006 FOR ASSESSMEN T YEAR 2000-01. ASSESSEE HAS RAISED FOLLOWING GROUND:- 1. UNDER THE FACTS AND CIRCUMSTANCES, THE LD. CIT(A ) LD. CIT(A)-XII, KOLKATA HAS ERRED IN DELETING THE ADDITION OF RS.12,87,94,0 00/- ON ACCOUNT OF INFLATED PURCHASES FROM M/S MADHO PRASAD MAHABIR PRASAD, ON THE GROUND THAT THE AO FAILED TO BRING ON RECORD ANY CORROBORATIVE MATE RIAL EVIDENCE TO INDICATE THE OVER INVOICING OF PURCHASE PRICES OF THE GLASS BEADS AND CHATONS. ITA NO. 959/KOL/2009 A.Y. 2000-01 ACIT,CIR-42 KOL. V. M.S M.M. EXPORTS PAGE 2 2. UNDER THE FACTS AND CIRCUMSTANCES, THE LD. CIT(A ) HAS ERRED IN DELETION OF THE ADDITION OF RS.20,000/- ON ACCOUNT OF BOGUS PU RCHASE OF M/S MONOHARLAL MAHABIR PRASAD ON THE GROUND THAT THE AO HAS NOT CO NDUCTED ANY ENQUIRIES EITHER DURING THE ASSESSMENT PROCEEDINGS OR AT THE REMAND REPORT STAGE. 3. UNDER THE FACTS AND CIRCUMSTANCES, LD. CIT(A) WA S NOT CORRECT IN DELETING THE ADDITION OF RS.3,51,117/- ON ACCOUNT OF INFLAT ED PURCHASE FROM M/S ATUL ENTERPRISES ON THE GROUND THAT AO FAILED TO CONDUCT ENQUIRIES AND BRING ON RECORD ANY MATERIAL RECORDS CONTRARY TO THE CLAIM O F THE ASSESSEE AND MERELY ON THE BASIS OF ASSESSEES ARGUMENTS. 4. UNDER THE FACTS AND CIRCUMSTANCES, THE LD. CIT(A ) HAS ERRED IN DELETING THE ADDITION OF RS.37,27,578/- ON ACCOUNT OF INFLATED PURCHASE FROM M/S UNISILK ON THE GROUND THAT AO SHOULD HAVE VERIFIED THIS ASP ECT FROM DIFFERENT SOURCES INCLUDING CUSTOM AUTHORITIES AND OTHER GOVT. AGENCI ES TO ASCERTAIN THE REAL VALUE OF THE GOODS REPORTED IF COMPARATIVE MARKET R ATE WAS NOT AVAILABLE. 5. UNDER THE FACTS AND CIRCUMSTANCES, THE LD. CIT(A ) HAS ERRED IN ALLOWING THE ASSESSEES APPEAL REGARDING THE ADDITION ON ACCOUNT OF CESSATION OF LIABILITY OF RS.1,21,553/- W.R.T. M/S A.B.N. LAMINATORS MEREL Y RELYING ON ASSESSEES ARGUMENTS WHEREAS THE ASSESSEE COULD NEITHER PROVE IT DURING THE ASSESSMENT STAGE, NOR DURING THE REMAND REPORT STAG E AND NOR DURING THE APPELLATE STAGE. 6. UNDER THE FACTS AND CIRCUMSTANCES, THE LD. CIT(A ) WAS NOT RIGHT IN DELETING THE DISALLOWANCE OF FREIGHT EXPENSES TO THE TUNE OF RS.23,250/- PAID TO NATWAR PARIKIH AND OTHER FREIGHT EXPENSES OF RS.38,235/- W HICH WERE MADE IN ABSENCE OF ANY PLAUSIBLE EVIDENCE. HENCE, THE LD. C IT(A) WAS NOT JUSTIFIED IN ALLOWING THE SAME. 7. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LD. CIT(A) WAS NOT CORRECT IN ALLOWING 90% OF THE SALE PROCEEDS OF THE DEPB LICENSE AS ALLOWABLE DEDUCTION U/S. 80HHC(3) AS THE CONDITIONS LAID U/S 80HHC WERE NOT FULFILLED FOR THE CLAIM. 2. FIRST GROUND RAISED BY REVENUE IS THAT LD. CIT(A ) ERRED IN DELETING THE ADDITION OF RS. 12,84,94,000/- MADE BY ASSESSING OF FICER ON ACCOUNT OF INFLATED PURCHASED. 3. THE FACTS OF THE CASE ARE THAT ASSESSEE IS A PAR TNERSHIP FIRM ENGAGED IN MANUFACTURING AND EXPORTS BUSINESS. DURING THE YEAR , ASSESSEE PURCHASED GOODS FROM M/S MADHO PRASAD MAHABIR PRASAD GLASS BE ADS AND GLASS CHATONS. THE NECESSARY DETAILS OF PURCHASES ARE GIV EN AS UNDER : ITA NO. 959/KOL/2009 A.Y. 2000-01 ACIT,CIR-42 KOL. V. M.S M.M. EXPORTS PAGE 3 S.NO. GOODS DESCRIPTION QUANTITY RATE AMOUNT(RS.) 1. GLASS BEADS 19,266 KGS. 6750/- RS. 13 ,00,45,500/- 2. GLASS CHATONS 25,000 DOZENS 30/- RS. 7,50 ,000/- TOTAL A RS. 13,07,95,500/- THE AO DURING THE ASSESSMENT PROCEEDINGS OBSERVED T HAT ALL THE PURCHASES WERE MADE WITHIN THE PERIOD OF TWO MONTHS I.E. APRI L 1999 TO MAY 1999. THE ASSESSEE FAILED TO PRODUCE THE EVIDENCE OF TRANSPOR TATION AND DELIVERY OF THE GOODS. THE ASSESSEE HAS SUBMITTED THE PHOTOCOPIES O F THE BILLS IN SUPPORT OF HIS PURCHASE OF THE ABOVE GOODS FROM THE PARTY. ON THE REQUEST OF THE AO THE ASSESSEE PRODUCED THE OWNER OF M/S MADHO PRASAD MAH ABIR PRASAD FOR THE VERIFICATION OF THE TRANSACTIONS. HOWEVER THE PARTY EXPRESSED HIS INABILITY TO GET THE TRANSACTIONS VERIFIED IN THE ABSENCE OF THE BOOKS OF ACCOUNTS. ACCORDINGLY HE REQUESTED THE AO FOR 10 DAYS TIME BU T THEREAFTER HE NEVER APPEARED. THE NOTICE SENT TO THE PARTY WAS RETURNED UNSERVED. BESIDES THE ABOVE THE AO ALSO FOUND THERE WAS ALSO SOME REPORT FROM THE CUSTOM DEPARTMENT THAT THE ASSESSEE AND THREE OTHER EXPORT ERS HAVE EXPORTED 58 CONSIGNMENTS OF FINISHED GOODS OF GLASS BEADS AT A HIGHLY DECLARED EXPORT PRICE OF RS. 7000.00 PER KG. IN ORDER TO AVAIL THE DEPB CREDIT TO THE TUNE OF RS. 4.80 CRORES. WHEREAS THE SALE PRICE OF THE SAME FRO M THE REPUTED MANUFACTURER OF GLASS BEADS RANGES FROM RS. 70 TO 1 00 PER KG. 3.1 IN VIEW OF THE ABOVE THE AO HELD THAT THE PURC HASES ARE BOGUS AND WORKED OUT THE GENUINE PURCHASE AS UNDER : S.NO. DESCRIPTION OF GOODS QUANTITY RATE AMOUNT (RS.) 1. GLASS BEADS 9266 KGS. 1000/- RS . 19,26,600/- 2. GLASS CHATONS 25000 DOZENS 3/- RS . 75,000/- TOTAL B RS 20,01,600/- DIFFERENCE (A-B) RS.12,87,93,900/- SAY RS.12,87,94,000/- THE AO HAS DISALLOWED THE ABOVE PURCHASE BY TREATIN G IT BOGUS PURCHASE AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. ITA NO. 959/KOL/2009 A.Y. 2000-01 ACIT,CIR-42 KOL. V. M.S M.M. EXPORTS PAGE 4 3.2 AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) WHO DELETED THE ADDITION MADE BY THE AO BY OBSERVING AS UNDER:- IV. I HAVE PERUSED AND EXAMINED THE ABOVE DOCUMENTS FURNISHED BEFORE ME AND ALSO PERUSED THE ASSESSMENT RECORDS WHEREIN ALM OST ALL THE ABOVE SAID DOCUMENTS ARE AVAILABLE. I HAVE ALSO GONE THROUGH T HE RELEVANT FACTS OF THE APPELLANT CONNECTED TO ENQUIRY MADE BY THE CUSTOMS DEPARTMENT. SOME OF THE DOCUMENTS ARE AVAILABLE IN THE ASSESSMENT RECOR DS AND SOME DOCUMENTS WERE FURNISHED DURING APPELLATE PROCEEDINGS. IT IS NOTICED FROM THE CUSTOMS RECORDS THAT INVEST IGATIONS ARE INITIATED AGAINST SOME EXPORTERS OF CALCUTTA INCLUDING THE APPELLANT AND M/S RAMAPATI EXPORTS AND OTHERS ON THE BASIS OF INFORMATION ABOUT OVER V ALUATION OF EXPORTED GOODS OF VARIOUS EXPORTERS. ACCORDINGLY ACTION WAS INITIA TED BOTH BY THE CUSTOMS DEPARTMENT AND ALSO THE SPECIAL INVESTIGATION BRANC H (SIB) OF THE CUSTOMS DEPARTMENT DURING THE RELEVANT PERIOD OF TIME. SHOW CAUSE NOTICES WERE ISSUED TO SOME EXPORTERS INCLUDING THE APPELLANT AL LEGING OVER VALUATION OF THE EXPORTED GOODS. IN THE CASE OF M/S. RAMAPATI EXPORT S WHO ALSO PURCHASED GLASS BEADS FROM M/S MADHO PRASAD MAHABIR PRASAD, T HE SHOW CAUSE NOTICE ISSUED WAS ADJUDICATED UPON BY THE COMMISSIONER OF CUSTOMS WHEREIN HE DROPPED THE PROCEEDINGS AGAINST ALL THE NOTICES. ON APPEAL THE KOLKATA CUSTOMS TRIBUNAL HELD THAT THE ALLEGATION OF OVER V ALUATION OF GLASS BEADS EXPORTED WAS NOT SUSTAINABLE IN THE ABSENCE OF ANY POSITIVE AND TANGIBLE EVIDENCES AND THAT SAMPLES TAKEN FROM RESPONDENTS CONSIGNMENT NOT TESTED BUT HAVING BEEN MISPLACED AND THAT VALUE OF GLASS B EADS PROPOSED IN SHOW CAUSE NOTICE NOT ACCEPTABLE IN ABSENCE OF ANY CO-RE LATION MADE BY REVENUE. IN THAT ORDERED THE HON'BLE TRIBUNAL ALSO MENTIONED THAT MR. NIRMAL KR. SARSWAT FILED BEFORE THE COMMISSIONER CERTIFIED COP IES OF SALE/PURCHASE AGREEMENT, CHALLANS, INVOICES, PAYMENT INSTRUCTIONS AND MONEY RECEIPTS ISSUED TO THE RESPONDENT ( M/S M.M. EXPORTS IS ALSO ONE SUCH PARTY ). THE HON'BLE TRIBUNAL ALSO QUOTED THAT THE COMMISSIONER OF CUSTOMS, KOLKATA ON APPRAISAL OF THE EVIDENCE ON THE STATEMENT OF VARIO US PERSONS RECORDED BY SIB CONCLUDED THAT THE STATEMENTS MAY CREATE AN ELE MENT OF DOUBT OF SUSPICION WITH REGARD TO THE VALUATION OF IMPUGNED GLASS BEADS AND NO TANGIBLE EVIDENCE HAS BEEN OBTAINED TO SUBSTANTIATE THE EVIDENCE COLLECTED THROUGH THE STATEMENTS. I HAVE ALSO NOTICED FROM TH E COPY OF THE ORDER OF HON'BLE SUPREME COURT OF INDIA THAT THE APEX COURT HAS DISMISSED THE APPEAL MADE BY THE COMMISSIONER OF CUSTOMS, KOLKATA IN THE CASE OF M/S RAMAPATI EXPORTS. THUS AS ARGUED BY THE LD. AER THE MATTER O F OVER VALUATION IN THE CASE OF M/S RAMAPATI EXPORTS REACHED A FINALITY. TH E FACTS OF THIS CASE AND SUBSEQUENT DISMISSAL OF APPEAL OF OVER VALUATION ASSUMES SIGNIFICANCE AS DURING THE RELEVANT POINT OF TIME I.E. F.Y 99-00 RE LEVANT TO THE AY 2000-01, M/S MADHO PRASAD MAHABIR PRASAD SUPPLIED GLASS BEAD S BOTH TO THE APPELLANT AND ALSO TO M/S RAMAPATI EXPORTS. I AGREE WITH THE VIEWS EXPRESSED BY THE LD. AR THAT THE CASE OF M/S.RAMAPATI EXPORTS IS IDENTICAL AND CONNECTED TO THE APPELLANTS CASE AND THEREFORE THE RULING GIVEN IN THAT CASE WOULD APPLY TO THE APPS CASE ALSO. IT IS RELEVANT TO REPRODUCE A PORTION OF THE EXTRACT OF APPELLANTS SUBMISSION DT. 26.03.09 AS U NDER:- FROM THE ABOVE IT S CRYSTAL CLEAR THAT YOUR APPELL ANT EXPORTED GOODS BEING GLASS BEADS & THE SAME IS NOT DISPUTED, THE P RICE AT WHICH ITA NO. 959/KOL/2009 A.Y. 2000-01 ACIT,CIR-42 KOL. V. M.S M.M. EXPORTS PAGE 5 EXPORTS HAVE TAKEN PLACE HAS BEEN ACCEPTED BY THE C USTOMS DEPARTMENT ITSELF DURING THE ASSESSMENT OF ALL THE SHIPPING BILLS. IN THE CASE CITED II 8 ABOVE EXPORT PRICE OF US $162 I.E. THE SAME PRICE AT WHICH WE HAD MADE EXPORTS WAS APPROVED & NO OVER-IN VOICING COULD BE PROVED BY THE DEPARTMENT. THE BASIS OF DOWNWARD REVISION OF PURCHASE PRICE BY THE ASSESSING OFFICER WAS THE REP ORT OF CUSTOMS WHICH ITSELF STANDS REJECTED AFTER THE ORDER OF THE CESTAT & VALUE TAKEN FOR EXPORTS I.E. US 162 OR RS.7000/- PER KG WAS FOUND TO BE GENUINE. AS THE CASE OF ACTION OF THE ASSESSING OFF ICER FOR TREATING REDUCING THE PURCHASE PRICE OF GLASS BEADS FROM RS. 6750- PER KG TO RS.100/- PER KG WAS NOT TENABLE IN LAW THE ACTION O F ASSESSING OFFICER IS ALSO NOT TENABLE IN LAW, UNJUSTIFIED & ILLEGAL & THE SAME SHOULD BE SET ASIDE. FURTHER TAKING A VALUE OF 100 PER KG AGAINST A SALE VALUE OF RS.7000/- PER KG RESULTS IN A GROSS PROFIT OF AROUND 98% WHIC H IS UNREALISTIC, UNREAL & IMAGINARY. IN THE CIRCUMSTANCES OF OUR CAS E, JUDGEMENT ON SIMILAR FACTS THE ORDER OF THE ASSESSING OFFICER AS REGARDS TAKING THE PURCHASE PRICE TO BE RS.100/- PER KG NEEDS TO BE SE T ASIDE. THE ABOVE ARGUMENT OF THE APPELLANT IS ALSO SUPPORT ED BY ANOTHER EVIDENCE BY WAY OF LETTER DT. 21.09.99 OF COMMISSIONER OF CU STOMS (PORT), KOLKATA ADDRESSED TO MEMBER (CUSTOMS) WHEREIN IT WAS COMMEN TED THAT THERE WAS NO OVER INVOICING IN THE CASE OF DECORATIVE FINISHE D GLASS BEADS. IT WAS FURTHER MENTIONED IN THAT LETTER THAT THE DECORATIVE GLASS BEADS PRICE RANGED FROM RS.6,000/- TO RS.6,500/- PER KG. DURING THE RELEVAN T POINT OF TIME. THE ABOVE FACTS AS REVEALED FORM THE CUSTOMS RECORD S CLEARLY SHOWS THAT THERE IS NO ELEMENT OF OVER INVOICING OF GLASS BEAD S IN THE CASE OF M/S. RAMAPATI EXPORTS CONNECTED TO M/S MADHO PRASAD MAHA BIR PRASAD WHO ALSO SUPPLIED GLASS BEADS TO M/S M.M. EXPORTS AT THE REL EVANT POINT OF TIME. AS SUCH, BASED ON SUCH INFORMATION AND REPORT RECEIVED FROM ASST. COMMISSIONER, CUSTOMS THE AO BLINDLY ADOPTED THE VA LUE WITHOUT MAKING ANY MARKETING ENQUIRIES WITH REGARD TO THE COMPARATIVE PRICE OF GLASS BEADS AND CHATONS EXISTING AT THAT RELEVANT POINT OF TIME AS THE CUSTOMS AUTHORITIES POINTED OUT THERE WAS A HUGE VARIANCE IN QUALITY AN D PRICE OF THE GLASS BEADS. AS SUCH WITHOUT VERIFYING THE QUALITY AND PRICE FRO M THE MARKET SOURCES AND WITHOUT BRINGING IN ANY CORROBORATIVE MATERIAL EVID ENCE ON RECORD TO INDICATE THE OVER INVOICING OF PURCHASES, THE ASSESSING OFFI CER'S ACTION OF ADOPTING THE VALUE OF RS.100/- PER KG. FOR GLASS BEADS AND RS.3/ - PER DOZENS FOR CHATONS IS NOT LOGICAL AS THERE WAS NO BASIS FOR SUCH VALUATIO N. MOREOVER THE AO HAS ALSO NOT MADE ANY ENQUIRIES WITH REGARD TO PAYMENTS MADE BY THE APPELLANT THOUGH BANKING CHANNELS. IT IS ALSO TO BE MENTIONED HERE THAT MR. NRMAL KR. SARSWAT, THE PROPRIETOR OF M/S MADHO PRASAD MAHABIR PRASAD FURNISHED AN AFFIDAVIT BEFORE CHIEF METROPOLITAN MAGISTRATE, KOL KATA DT. 14.02.2000 WHEREIN HE CONFIRMED THAT HE SOLD AND DELIVERED THE GLASS B EADS TO M/S M.M. EXPORTS AND M/S RAMAPATI EXPORTS. A COPY OF THE ABOVE SAID AFFIDAVIT IS ALSO BEEN FURNISHED. THE RELEVANT PORTION APPEARING AT POINT 5 OF PAGE 2 OF THE AFFIDAVIT IS REPRODUCED AS UNDER:- ITA NO. 959/KOL/2009 A.Y. 2000-01 ACIT,CIR-42 KOL. V. M.S M.M. EXPORTS PAGE 6 I SAY THAT THE SAID GLASS BEADS WERE RECEIVED BY M E IN SMALL LOTS ON DIVERSE DATES AND I SOLD DELIVERED THE SAME TO THE SAID M/S M.M. EXPORTS, CALCUTTA AND M/S. RAMAPATI EXPORTS AT THEI R RESPECTIVE OFFICES AT CALCUTTA THROUGH MY SAID PEON. THE SAID MR. SARSWAT HAS ALSO FURNISHED A REPLY DT 26.02.03 TO THE COMMISSIONER OF CUSTOMS (PORT), KOLKATA WHEREIN HE CONFIRMED THAT HE SOLD THE GLASS BEADS TO M/S. M.M. EXPORTS AT RS.6,750/- PER KG. THE RELEVANT EXTRACT APPEARING AT POINT 4 & OF PAGE 1 & 2 OF THE ABOVE SAID REPLY IS REPRODUCED HERE AS UNDER:- 4. I CAME INTO CONTRACT WITH SHRI L.K. TODI OF M/S M.M. EXPORT, WHO WANTED TO BUY GLASS BEADS FROM ME. I ENTERED INTO A N AGREEMENT WITH HIM TO SELL GLASS BEDS AT LOCAL LEVEL & RS.6,750- P ER KG. THE GLASS BEADS WERE HAND CUT AND HAND POLISHED. 5. BETWEEN APRIL, 1999 AND MAY 1999, I SOLD AND DEL IVERED 19260 KG AND 25000 DOZEN OF HAND CUT GLASS BEADS AND DECORAT ED AND GLASS CHATONS. TIME TO TIME I RAISED BILLS UPON M/S M.M. EXPORT WHICH WERE PAID BY M/S M.M. EXPORT TO ME OR MY NOMINEES. ON FE W OCCASION I CAUSED TO DELIVER THE GOODS THROUGH M/S ARAWALI GEM S WHEN THE GOODS WERE REQUIRED ON URGENT BASIS. THE ONLY DEFICIENCY POINTED OUT BY THE AO IS THAT M R. NIRMAL KR. SARSWAT DID NOT APPEAR ON A SUBSEQUENT DAY AND THAT NO TRANSPOR T EVIDENCE WAS PRODUCED CORRESPONDING TO THE PURCHASE IN QUESTION. IN MY OPINION, THIS IS NOT A CONCLUSIVE TEST TO ARRIVE AT THE BOGUS/INFLATED N ATURE OF THE PURCHASERS WITHOUT VERIFYING THE PAYMENTS MADE BY THE BANKING CHANNELS. MOREOVER, THE AO DESPITE ASSESSMENT DETAILS FURNISHED COULD NOT C ROSS VERIFY FROM THE ASSESSMENT RECORDS AVAILABLE. ALSO THE AO COULD NOT PROVE THAT THE CORRESPONDING EXPORT SALES WERE BOGUS AND NON-EXIST ING. THE APPELLANT HAS SUFFICIENTLY PRODUCED THE NECESSARY DOCUMENTARY EVI DENCES IN RESPECT OF THE PURCHASES IN QUESTION. V. DECISION : IN VIEW OF THE FOREGONE DISCUSSION AND CIRCUMSTANCE S AND FACTS OF THE CASE ESPECIALLY IN THE LIGHT OF THE FINDINGS NOTICED FRO M THE CUSTOMS RECOURSES, I AM OF THE VIEW THAT THE AO FAILED TO BRING ON RECORD A NY CORROBORATIVE MATERIAL EVIDENCE ON RECORD TO INDICATE THE OVER INVOICING O F PURCHASE PRICES OF THE GLASS BEADS AND CHATONS. ACCORDINGLY, I HELD THAT T HE ADDITION MADE ON ACCOUNT OF ALLEGED OVER INVOICING OF PURCHASES IS W ITHOUT ANY BASIS. ACCORDINGLY I DIRECT THE AO TO DELETE THIS ADDITION OF RS.12,87,94,000/- MADE ON ACCOUNT OF INFLATION OF PURCHASES . BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) REVENUE CAME IN APPEAL BEFORE US. ITA NO. 959/KOL/2009 A.Y. 2000-01 ACIT,CIR-42 KOL. V. M.S M.M. EXPORTS PAGE 7 MR.S.M. SURANA, LD. AUTHORIZED REPRESENTATIVE APPEA RING ON BEHALF OF ASSESSEE AND MR. UDAY KUMAR SARKAR, LD. DEPARTMENTA L REPRESENTATIVE APPEARING ON BEHALF OF REVENUE. 4. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. LD. DR VEHEMENTLY RELIED ON THE ORDER OF AS SESSING OFFICER WHEREAS LD. AR SUPPORTED THE ORDER OF LD. CIT(A). LD. AR SU BMITTED THE PAPER BOOK WHICH IS RUNNING PAGES 1 TO 178. BEFORE US THE LD. AR SUBMITTED THAT THE AO HAS TAKEN THE PURCHASE PRICE AT JUST RS. 100/- PER KG. WITHOUT INVESTIGATING THE MARKET PRICE. THE AO HAS ACTED ON THE INFORMATION G ATHERED FROM THE CUSTOM DEPARTMENT. THE ASSESSEE DURING THE YEAR HAS EXPORT ED THE GOODS AND RECEIVED THE SALES CONSIDERATION IN FOREIGN EXCHANG E AFTER PURCHASING THE GOODS FROM M/S MADHO PRASAD MAHAVIR PRASAD. HOWEVER THE AO HAS NOT CHALLENGED THE SALE CLAIMED BY THE ASSESSEE. THE LD . AR PRODUCED THE COPY OF THE PURCHASE BILLS FROM THE ABOVE SAID PARTY WHI CH ARE PLACED ON PAGES 144 TO 161 OF THE PAPER BOOK . THERE WAS ALSO AN AGREEMENT BETWEEN THE ASSESSEE AND THE PARTY FOR THE SALE PURCHASE OF GLA SS BEADS AND FIRE POLISHED GLASS CHATONS WHICH IS PLACED AT PAGE 162 OF THE PAPER BOOK . THE ASSESSEE HAS MADE THE PAYMENT OF ALL THE PURCHASE BILLS THRO UGH ACCOUNT PAYEE CHEQUE. OUR ATTENTION WAS ALSO DRAWN ON PAGE 30 TO 33 OF THE CUSTOM REPORT TO DEMONSTRATE THAT NO OVER VALUATION OF THE EXPORT S WAS MADE TO EARN EXTRA DEPB AND THE NAME OF THE ASSESSEE WAS NOT THERE IN THE LIST THOSE WHO CLAIMED THE EXTRA DEPB. . FINALLY THE AR PRAYED FOR ALLOWANCE OF THE PURCHASE EXPENSES. 4.1 FROM THE AFORESAID DISCUSSION WE FIND THAT THE ASSESSEE HAS MADE TOTAL PURCHASE OF THE GOODS FOR AN AMOUNT OF RS. 13,07,95 ,500.00 FROM M/S MADHO PRASAD MAHAVIR PRASAD. OUT OF THE TOTAL PURCHASE TH E AO HAS DISALLOWED THE PURCHASE EXPENSES WORTH OF RS. 12,84,94,000.00 ON T HE INFORMATION GATHERED FROM THE CUSTOM DEPARTMENT THAT THE ASSESSEE HAS OV ERPRICED THE VALUE OF THE EXPORT GOODS. HOWEVER THE CIT(A) HAS ALLOWED THE SA ME BY TREATING THE ITA NO. 959/KOL/2009 A.Y. 2000-01 ACIT,CIR-42 KOL. V. M.S M.M. EXPORTS PAGE 8 TRANSACTION AT THE FAIR MARKET VALUE. WE FIND THAT THE AO IN THE INSTANT CASE HAS DISALLOWED THE SUBSTANTIVE PURCHASE WITHOUT MAK ING THE SUBSTANTIVE ENQUIRY ABOUT THE PREVAILING MARKET PRICE OF THE PR ODUCT IN QUESTION. THE AO ALSO NOT CONSIDERED THE PAYMENT TO THE PARTY WHICH WAS MADE THROUGH THE BANKING CHANNEL. THE GOODS WERE EXPORTED AFTER THE CUSTOM CLEARANCE AND THE PAYMENT WAS REALIZED IN TERMS OF CONVERTIBLE OF FOREIGN EXCHANGE. WE ALSO FIND FROM THE REPORT OF THE CUSTOM DEPARTMENT THAT NO OVER INVOICING FOR THE EXPORT OF THE GOODS WAS MADE. THE LD. AR ALSO DREW OUR ATTENTION ON PAGES 85 TO 90 OF THE PAPER WHERE THE AFFIDAVIT GIVEN BY MR. NIRMAL KUMAR SARSWAT- A PARTNER OF M/S MADHO PRASAD MAHAVIR PRASAD BEFORE THE LD. CHIEF METROPOLITAN MAGISTRATE REGARDING THE SALE OF THE G OODS TO THE ASSESSEE IS PLACED. THEREFORE CONSIDERING THE TOTAL ITY OF THE CASE AND SUBMISSION WE FIND NO REASON TO INTERFERE IN THE OR DER OF THE LD. CIT(A), HENCE THE GROUND RAISED BY THE REVENUE IS DISMISSED. 5. SECOND ISSUE RAISED BY REVENUE IS THAT LD. CIT(A ) ERRED IN DELETING THE ADDITION MADE BY AO FOR 20,000/- ON ACCOUNT OF BOGUS PURCHASE FROM M/S MONOHARLAL MAHABIR PRASAD. 6. DURING THE YEAR ASSESSEE CLAIMED TO HAVE PURCHAS ED GOODS WORTH OF 20,000/- FROM M/S MONOHARLAL MAHABIR PRASAD. THE AO FOUND THAT THE PARTY OPERATES FROM THE SAME ADDRESS AS THAT OF ASSESSEE. ON ENQUIRY FROM THE PARTY FOR THE SALE OF GOODS, IT WAS FOUND THAT NO S ALE WAS MADE TO THE ASSESSEE. THEREFORE, THE SAME WAS DISALLOWED AND AD DED TO THE TOTAL INCOME OF ASSESSEE. 7. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A) WHO HAS DELETED THE ADDITION MADE BY AO BY OBSERVING AS UND ER:- I. THE AO MADE THE ADDITION AS THE APPELLANT FAILE D TO PRODUCE PURCHASE BILL AND THE PARTY (SUPPLIER OF GOODS) ALSO NOT CONFIRME D THE SALE MADE TO THE APPELLANT. IN THE REMAND REPORT THE AO REPRODUCED T HE SAME ARGUMENT II) THE LD. AR HOWEVER ARGUED THAT COPY OF INVOICE DATED 25.06.99 HAVING PURCHASED TIES AND COPY OF FORM NO. 42A OBTAINED FROM SALES TAX ITA NO. 959/KOL/2009 A.Y. 2000-01 ACIT,CIR-42 KOL. V. M.S M.M. EXPORTS PAGE 9 AUTHORITIES INDICATING THE PURCHASE MADE FROM OUTSI DE WEST BENGAL WERE FURNISHED BEFORE THE AO AT ASSESSMENT PROCEEDINGS S TAGE AD ALSO AT REMAND REPORT STAGE. AS REGARDS THE NON-CONFORMATION FROM THE PARTY IT IS SUBMITTED THAT THE APPELLANT PRODUCED ALL NECESSARY EVIDENCES IN RESPECT OF THE PURCHASE MADE INCLUDING LEDGER EXTRACT OF THE PARTY APPEARING IN THE APPS BOOKS OF ACCOUNT. III) I HAVE PERUSED THE DOCUMENTS WHICH WERE PRODUC ED BEFORE THE AO INCLUDING FORM NO. 42A GIVEN BY THE SALES TAX AUTHO RITIES. I FIND THERE IS A FORCE IN THE ARGUMENT OF THE LD. AR THAT THE APPELL ANT FILED ALL THE RELEVANT DETAILS INCLUDING THE ADDRESS OF M/S MANOHAR LAL MA HABIR PRASAD. THE AO AS NOT CONDUCTED ANY ENQUIRIES EITHER DURING THE ASSES SMENT PROCEEDINGS OR AT THE REMAND REPORT STAGE. IN FACT M/S MANOHARLAL MAH ABIR PRASAD IS THE SISTER CONCERN OF THE APPELLANT FIRM. THE AO SHOULD HAVE C ROSS VERIFIED THE RETURN OF INCOME FILED BY THIS PARTY. IV).AS THE AO FAILED TO PRODUCE ANY COGENT AND CORR OBORATIVE EVIDENCE TO ESTABLISH THE BOGUS NATURE OF THE ABOVE PURCHASE, I DIRECT THE A.O TO DELETE THIS ADDITION OF RS.20,000/- 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. BEFORE US THE LD. AR SUBMITTED THAT THE GOO DS WERE PURCHASED FROM THE SAID PARTY VIDE INVOICE NO. MMP/NT/176 DATED 25 .6.1999 FOR RS. 20,000/-. THIS TRANSACTION OF PURCHASE WAS INTERSTATE PURCHAS E SO THE FORM 42A WAS DULY SUBMITTED TO THE SALES TAX DEPARTMENT. 9. WE FIND FROM THE AFORESAID DISCUSSION THAT THE A O HAS DISALLOWED THE PURCHASE EXPENSES DUE TO NON AVAILABILITY OF THE PU RCHASE BILLS. HOWEVER THE SAME HAS BEEN ALLOWED BY THE LD. CIT(A) AFTER DUE V ERIFICATION OF THE NECESSARY SUPPORTING EVIDENCE. BEFORE US THE LD. DR HAS NOT BROUGHT ANYTHING ON RECORD TO CONTROVERT THE FINDING OF THE LD. CIT( A), THEREFORE WE ARE CONFIRMING THE ORDER OF THE LD. CIT(A) AND DISMISSE D THIS GROUND OF THE REVENUE. 10. GROUND NO.3 RAISED BY REVENUE IS THAT LD. CIT(A ) HAS ERRED IN DELETING THE ADDITION MADE BY AO FOR AN AMOUNT OF 3,51,117/- ON ACCOUNT OF INFLATING PURCHASE FROM M/S ATUL ENTERPRISE. ITA NO. 959/KOL/2009 A.Y. 2000-01 ACIT,CIR-42 KOL. V. M.S M.M. EXPORTS PAGE 10 11. DURING THE YEAR ASSESSEE CLAIMED TO HAVE MADE P URCHASE FOR AN AMOUNT OF 3,51,117/- FROM M/S ATUL ENTERPRISE. BUT THE ASSESS EE FAILED TO PRODUCE THE PURCHASE BILLS FROM THE PARTY. THE AO M ADE ENQUIRY FROM THE PARTY CONCERN U/S. 133(6) OF THE ACT, BUT THE NOTIC E WAS RETURNED BY THE POSTAL DEPARTMENT AS UNSERVED. THE ASSESSEE ALSO FAILED TO PROVIDE THE PRESENT ADDRESS OF THE PARTY. THEREFORE, AO COULD NOT MAKE NECESSARY ENQUIRY FOR THE PURPOSE OF VERIFICATION OF PURCHASE BILL. HENCE, TH E PURCHASE AMOUNT OF 3,51,117/- WAS DISALLOWED AND ADDED IT TO THE INCOM E OF ASSESSEE. 12. AGGRIEVE, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) WHO HAS DELETED THE ADDITION BY OBSERVING AS UNDER:- I. THE AO MADE THE ADDITION IN THE ABSENCE OF PURC HASE BILLS AND THE PRESENT POSTAL ADDRESS OF THE PARTY. II. THE AR FURNISHED THE PRESENT POSTAL ADDRESS OF MR ARUN KUMAR TODI OF M/S ATUL ENTERPRISES ALONG WITH LEDGE COPY, INVO ICE COPIES, PAYMENT DETAILS BY ACCOUNT PAYEE BANK DRAFTS AND OTHER RELE VANT DETAILS BEFORE THE AO DURING THE REMAND REPORT STAGE. THE AO HAS N OT CAUSED ANY ENQUIRIES EXCEPT ACKNOWLEDGING THE FACT THAT SOME C OPIES OF INVOICES WERE SUBMITTED. MY EARLIER PREDECESSOR CALLED FOR A REMAND REPORT FROM THE AO WAY BACK ON 25.6.07 ENCLOSING COPY OF THE SU BMISSIONS MADE BEFORE THE CIT(A). AGAIN A REMINDER WAS SENT ON 20. 8.07 FOR EARLY REPORT ON THE POINTS RAISED BY THE APPELLANT. FINALLY THE AO HAS SENT THE REPORT WITHOUT CAUSING ANY ENQUIRIES. WHEN A DIRECTION GIV EN BY THE CIT(A) TO SENT A REPORT ON CERTAIN POINTS/SUBMISSIONS MADE BY THE APPELLANT INCLUDING THE POINTS/EVIDENCES NOT RAISED/PRODUCED BEFORE THE AO DURING ASSESSMENT PROCEEDINGS, THE AO BOUND TO ACT AND GIVEN HIS COMMENTS AFTER DUE VERIFICATION OF THE MATTER. THE AO SHOULD HAVE MADE PROPER ENQUIRIES TO ASCERTAIN THE GENUINENESS OF TRANSACTIONS AS THE PRESENT POSTAL ADDRESS AND PAYMENT DETAILS AVAI LABLE. IV. IN MY VIEW, THE APPELLANT WHICH FAILED TO PRODU CE THE RELEVANT DETAILS DURING ASSESSMENT PROCEEDINGS, FURNISHED THE REQUIR ED DETAILS AT THE REMAND REPORT STAGE, THUS DISCHARGING ITS ONUS OF R ESPONSIBILITY. IT IS FOR THE DEPARTMENT TO PROVE THE GENUINENESS OR OTHERWIS E OF THE TRANSACTIONS WHEN ONCE THE BASIC FACTS ARE AVAILABL E. HOWEVER THE AO FAILED TO GET ENQUIRIES DONE AND BRING ON RECORD AN Y MATERIAL EVIDENCE CONTRARY TO THE CLAIM OF THE APPELLANT. IN THESE CI RCUMSTANCES, THE ADDITION MADE ON ACCOUNT OF UNPROVEN GENUINENESS OF TRANSACTIONS IS NOT REASONABLE AND DESERVES TO BE DELETED. ACCORDIN GLY, I DIRECT THE AO TO DELETE THE ADDITION OF RS.3,15,117/- MADE TOWARD S PURCHASE. ITA NO. 959/KOL/2009 A.Y. 2000-01 ACIT,CIR-42 KOL. V. M.S M.M. EXPORTS PAGE 11 BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) REVENUE IS IN APPEAL BEFORE US : 13. BEFORE US THE LD. AR SUBMITTED THAT ALL THE PAY MENTS FOR PURCHASES WERE MADE THROUGH ACCOUNT PAYEE CHEQUE. THE LD. AR PRODU CED THE COPY OF THE LEDGER OF THE PARTY WHICH IS PLACED AT PAGE 178 OF THE PAPER BOOK. THE LD. AR ALSO SUBMITTED THAT ALL THE REQUISITE DETAILS WERE SUBMITTED SUCH AS COPIES OF INVOICE, LEDGER COPY, PAYMENT DETAILS ETC. BEFORE T HE AO DURING THE TIME OF THE REMAND REPORT. 14. WE FIND FROM THE AFORESAID DISCUSSION THAT THE AO DISALLOWED THE PURCHASE DUE TO NON-PRODUCTION OF THE BILL FROM THE PARTY, NOTICE SENT WAS UNSERVED AND NON-AVAILABILITY OF THE PRESENT ADDRES S OF THE PARTY. BUT WE FIND FROM THE ORDER OF THE LD. CIT(A), ALL THE NECESSARY DETAILS WERE FURNISHED AT THE TIME OF THE REMAND REPORT TO THE AO. THE LD. DR. HA S ALSO NOT BROUGHT ANYTHING ON RECORD TO CONTROVERT THE FINDING OF THE LD. CIT(A). IN VIEW OF ABOVE WE FIND NO REASON TO INTERFERE IN THE ORDER OF THE LD. CIT(A). HENCE THIS GROUND OF REVENUE APPEAL IS DISMISSED. 15. GROUND NO.4 RAISED BY REVENUE IN THIS APPEAL IS THAT LD. CIT(A) ERRED IN DELETING THE ADDITION FOR AN AMOUNT OF 37,27,578/- ON ACCOUNT OF INFLATED PURCHASE FROM M/S UNISILK. 16. DURING THE YEAR, ASSESSEE CLAIMED TO HAVE PURCH ASED GOODS WORTH OF RS.37,27,578/- FROM M/S UNISILK LTD. HAVING ADDRESS AT 1615/16/F 1, STAR HOUSE, 3, SALIS BURI ROAD, KOWLOON, HONG KONG. SEVE RAL OPPORTUNITIES WERE GIVEN TO ASSESSEE TO PRODUCE NECESSARY EVIDENCE IN RESPECT OF THE ABOVE STATED PURCHASES. BUT THE ASSESSEE FAILED TO PROVID E THE DOCUMENTARY EVIDENCE. THEREFORE, AO HELD THAT SUCH PURCHASE CAN NOT BE TREATED AS GENUINE, THEREFORE DISALLOWED AND ADDED TO THE INCO ME OF ASSESSEE. ITA NO. 959/KOL/2009 A.Y. 2000-01 ACIT,CIR-42 KOL. V. M.S M.M. EXPORTS PAGE 12 17. AGGRIEVED, ASSESSEE PREFERRED SECOND APPEAL BEF ORE LD. CIT(A) WHO DELETED THE ADDITION MADE BY AO BY OBSERVING AS UND ER:- I. AS SEEN FROM THE ASSESSMENT ORDER THE AO MADE T HE ADDITION AS THE APPELLANT FAILED TO PRODUCE ANY SUPPORTING EVIDENCE . DURING THE REMAND REPORT STAGE, THE AO OBSERVED THAT THE ASSESSEE FAI LED TO PRODUCE JUSTIFICATION OF THE COST OF PURCHASE OF RAW SILK. II. THE APPELLANT ON THE OTHER HAND SUBMITTED THAT IT PRODUCED ALL RELEVANT INFORMATION PROVING THE IMPORTS AND GENUIN ENESS OF TRANSACTION BY WAY OF INVOICES AND BILL OF ENTRY. III. IN MY VIEW, THE APPELLANT PRODUCED SUFFICIENT MATERIAL EVIDENCE TO PROVE THE IMPORT TRANSACTION TO MEET THE REQUIREMEN T OF THE AO AS POINTED OUT IN HIS ASSESSMENT ORDER. HOWEVER ACCORD ING TO AO THE APPELLANT FAILED TO PRODUCE ANY EVIDENCE JUSTIFYING THE COST OF SILK. THE APPELLANT SUBMITTED THAT THE ITEM BEING UNIQUE, THE PRICE COMPARABILITY IS NOT AVAILABLE. MAY BE THE APPELLANT IS RIGHT. FI RSTLY AS THE SAME KIND OF QUALITY SILK WOULD NOT BE AVAILABLE IN INDIA. HENCE THE APPELLANT MIGHT HAVE IMPORTED THE GOODS. SECONDLY THE COST OF THAT PARTICULAR KIND OF SILK MIGHT BE COMPARATIVELY LESS WHICH MADE THE APPELLAN T TO IMPORT THE GOODS. ON THE OTHER HAND THE AO SHOULD HAVE VERIFIE D THESE ASPECTS FROM DIFFERENT SOURCES INCLUDING CUSTOMS AUTHORITIE S AND OTHER GOVERNMENT AGENCIES (COMMERCE MINISTRY ETC.) TO ASC ERTAIN THE REAL VALUE OF THE GOODS IMPORT IF COMPARATIVE MARKET RAT E WAS NOT AVAILABLE. HE SHOULD HAVE EXAMINED THE ASPECT OF THE UTILITY O F THE GOODS AND SUBSEQUENT SALE TO ASCERTAIN ITS CONSUMPTION AND PR ICE. THE ASSESSING OFFICER HAS NOT MADE ANY EFFORTS EITHER TO PROVE TH E IMPORTS ARE WRONG OR TO BRING ANY COGENT MATERIAL EVIDENCE TO SHOW TH AT THE APPELLANT RESORTED TO OVER INVOICING IMPORTED PURCHASES. IN V IEW OF THE MATTER I AM OF THE OPINION THAT THE ADDITION MADE ON ACCOUNT OF COST DESERVED TO BE DELETED. THEREFORE, I DIRECT THE AO TO DELETE TH IS ADDITION OF RS.37,27,578/- MADE TOWARDS PURCHASE OF SILK. 18. BEFORE US THE LD. AR SUBMITTED THAT THIS IS AN IMPORT TRANSACTION AND ALL THE RELEVANT DOCUMENTS SUCH AS ALL THE 4 INVOICES O F THE PARTY, BILL OF ENTRY OF EACH IMPORT (4 NOS.), BANK CERTIFICATE FOR THE REMI TTANCE OF PAYMENT BEFORE THE AO AT THE TIME OF REMAND REPORT. HOWEVER THE AO ASK ED FOR THE COMPARISON OF THE IMPORT PRICE OF SILK WITH INDIAN PRICE WHICH TH E ASSESSEE FAILED TO FURNISH BEING THE UNIQUE ITEM OF PURCHASE. ITA NO. 959/KOL/2009 A.Y. 2000-01 ACIT,CIR-42 KOL. V. M.S M.M. EXPORTS PAGE 13 18.1 FROM THE AFORESAID DISCUSSION WE FIND THAT THE AO HAS DISALLOWED THE PURCHASE OF IMPORTED SILK WORTH OF RS. 37,27,578.00 DUE TO NON PRODUCTION OF THE NECESSARY SUPPORTING DOCUMENTS. BUT WE FIND FRO M THE ORDER OF LD. CIT(A) THAT ALL THE REQUISITE DETAILS WERE FURNISHED TO TH E AO AT THE TIME OF REMAND REPORT. THE LD. DR HAS NOT BROUGHT ANYTHING ON RECO RD TO CONTROVERT THE FINDINGS OF THE LD. CIT(A). IN VIEW OF ABOVE WE FIN D NO REASON TO INTERFERE IN THE ORDER OF THE LD. CIT(A). HENCE THIS GROUND OF REVEN UE APPEAL IS DISMISSED. 19. GROUND NO.5 RAISED BY REVENUE IN THIS APPEAL IS THAT LD. CIT(A) ERRED IN TREATING THE ADDITION FOR AN AMOUNT OF 1,21,553/- ON ACCOUNT OF CESSATION OF LIABILITY WITH RESPECT TO W.R.T. M/S A.B.N. LAME NATORS. 20. DURING THE COURSE OF ASSESSMENT PROCEEDINGS AO FOUND THAT THE CREDITORS WORTH OF 1,21,553/- WAS APPEARING AT THE END OF YEAR IN THE NAME OF M/S A.B.N. LAMENATORS. THE AO OBSERVED THAT THE CRE DITOR WAS OUTSTANDING FOR THE LAST SEVERAL YEARS AND ASSESSEE WAS NOT HAV ING THE CURRENT ADDRESS OF THE SAID PARTY. THEREFORE, AO OPINED THAT SUCH LIAB ILITY IS NOT PAYABLE AND CANNOT BE ENFORCED FOR PAYMENT. HENCE, AO FOUND THA T LIABILITY IS CEASED TO EXIST. THEREFORE, SAME ADDED TO THE INCOME OF ASSES SEE. 21. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) WHO DELETED THE ADDITION MADE BY AO BY OBSERVING AS UNDER:- I. THE A.O MADE ADDITIONS IN THE CASE OF ABN LAMIN ATORS P. LTD. , KOLKATA AND RGS APPARELS , TRIPUR, TAMIL NADU WITH RESPECT TO SUNDRY CREDITORS ON THE GROUND THAT THE LIABILITY WAS CEA SED. MOREOVER THE NOTICES SENT U/S 133(6) RETURNED UNRESERVED. IN THE REMAND REPORT THE AO OBSERVED THAT THE APPELLANT FURNISHED ONLY THE R ESIDENTIAL ADDRESS OF ONE OF THE DIRECTORS OF ABN LAMINATORS P. LTD. AND IN THE CASE OF RGS APPARELS NO PRESENT ADDRESS WAS PRODUCED. II. ON THE OTHER HAND, THE LD. AR SUBMITTED THAT IN THE CASE OF ABN LAMINATORS P. LTD.S CURRENT POSTAL ADDRESS AS APPE ARING IN THE RECORDS OF THE REGISTER OF THE COMPANIES WAS FURNISHED ALON G WITH THE RESIDENTIAL ADDRESS OF THE DIRECTOR OF A COMPANY. IT IS FURTHER SUBMITTED THAT THE COMPANY IS A DULY REGISTERED COMPANY AND COPY OF I. T ITA NO. 959/KOL/2009 A.Y. 2000-01 ACIT,CIR-42 KOL. V. M.S M.M. EXPORTS PAGE 14 ACKNOWLEDGEMENT OF THE PARTY WAS ALSO PRODUCED. THE NOTICE U/S. 133(6) WAS ISSUED AFTER A GAP OF MORE THAN SEVEN YE ARS AS SUCH THERE WOULD HAVE BEEN A CHANGE IN THE ADDRESS. IN RESPECT OF M/S RGS APPARELS IT HAS BEEN SUBMITTED THAT SINCE THE NOTIC E WAS GIVEN AFTER A GAP OF SEVEN YEARS THERE WOULD HAVE BEEN A CHANGE I N THE ADDRESS AND THAT THE AMOUNT IN QUESTION WAS SUBSEQUENTLY PAID B Y WAY OF ACCOUNT PAYEE CHEQUE DURING THE F.Y 2003-04. TO THIS EXTENT THE COPIES OF THE LEDGER ACCOUNTS WERE FURNISHED. III. IN THE CASE OF M/S. ABN LAMINATORS P. LTD., TH E APPELLANT FURNISHED THE CURRENT POSTAL ADDRESSES OF THE COMPANY AND RES IDENTIAL ADDRESSES OF A DIRECTOR OF THE COMPANY ALONG WITH INCOME TAX DETAILS OF THE COMPANY. HOWEVER THE AO HAS NOT CONDUCTED ANY ENQUI RIES BASED ON THE INFORMATION GIVEN BY THE APPELLANT. HE SHOULD H AVE ENQUIRED INTO THE MATTER AS THE PRESENT WHEREABOUTS OF THE COMPANY HA S BROUGHT TO THE KNOWLEDGE OF THE AO. THE CESSATION OR REMISSION OF LIABILITY DEPENDS ON THE FACTUAL POSITION. EITHER THE APPELLANT COMPANY SUO MOTU WRITE OFF IN ITS BOOKS OR BASED ON THE CONFIRMATION GIVEN BY THE SUNDRY CREDITORS THE CESSATION OF THE LIABILITY COMES INTO PICTURE. IN T HIS CASE THERE IS NEITHER REMISSION NOR CESSATION OF LIABILITY. IN THE ABSENC E OF ANY MATERIAL EVIDENCE BROUGHT ON RECORD BY THE AO EVEN AT THE RE MAND REPORT STAGE I DECLINE TO AGREE WITH THE ADDITION MADE ON ACCOUN T OF CESSATION OF LIABILITY IN THE CASE OF M/S ABN LAMINATORS P. LTD. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) REVENUE CAME IN APPEAL BEFORE US. 22. BEFORE US THE LD. AR SUBMITTED THAT THE LIABILI TY TOWARDS THE CREDITOR IS VERY MUCH IS APPEARING IN THE BOOKS OF THE ASSESSEE AND IT HAS NOT CEASED TO EXIST. FOR THE NON-SERVICE OF NOTICE THE ASSESSEE S UBMITTED THAT LIABILITY IN THE BOOKS OF THE ASSESSEE HAS BEEN APPEARING FOR MORE T HAN 7 YEARS SO APPREHENDED FOR THE CHANGE OF ADDRESS OF THE COMPAN Y. HOWEVER WE FIND FROM THE SUBMISSIONS AND RECORDS THAT THE LIABILITY TOWARDS SUNDRY CREDITORS HAS NOT CEASED TO EXIST IN THE BOOKS OF THE ASSESSE E. THEREFORE IT CANNOT BE TREATED AS INCOME OF THE ASSESSEE. THE LD. DR HAS N OT BROUGHT ANYTHING ON RECORD TO CONTROVERT THE FINDINGS OF THE LD. CIT(A) . IN VIEW OF ABOVE WE FIND NO REASON TO INTERFERE IN THE ORDER OF THE LD. CIT(A). HENCE THIS GROUND OF REVENUE APPEAL IS DISMISSED. ITA NO. 959/KOL/2009 A.Y. 2000-01 ACIT,CIR-42 KOL. V. M.S M.M. EXPORTS PAGE 15 23. GROUND NO.6 RAISED BY REVENUE IN THIS APPEAL I S THAT LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY AO ON ACCOUNT OF FREIGHT EXPENSES OF 23,250/- TO NATWAR PARIKH INDUSTRIES AND OTHER FREI GHT EXPENSES OF 38,235/- ON ACCOUNT OF NON-PRODUCTION OF SUPPORTING EVIDENCE . 24. DURING THE YEAR, ASSESSEE HAS INCURRED AN EXPEN SE OF 52,046/- TOWARDS FREIGHT CHARGES TO NATWAR PARIKH INDUSTRIES AND OTHER FREIGHT CHARGES OF 38,235/- BUT ASSESSEE FAILED TO PRODUCE SUPPORTING EVIDENCE. THEREFORE, SAME WAS ADDED TO THE INCOME OF ASSESSEE BY AO. 25. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) WHERE THE ASSESSEE SUBMITTED ONLY PART OF THE BILLS RELATED T O NATWAR PARIKH INDUSTRIES FOR AN AMOUNT OF RS. 23,250/- BUT NO SUPPORTING DOC UMENT WAS SUBMITTED FOR OTHER FREIGHT EXPENSES. ACCORDINGLY THE LD. CIT(A) DELETED THE ADDITION OF RS. 23,250.00 ONLY BY OBSERVING AS UNDER:- I. THE AO ADDED RS.52,046/- IN THE CASE OF M/S NAT WAR PARIKH INDUSTRIES AND RS.38,235/- TOWARDS MISCELLANEOUS EX PENSES IN THE ABSENCE OF BILLS AND SUPPORTING EVIDENCES. EVEN IN THE REMAND REPORT THE AO OBSERVED THAT NO SUPPORTING EVIDENCES WERE F URNISHED. II. THE APPELLANT CONTENDED THAT M/S NATWAR PARIKH INDUSTRIES WAS A DULY REGISTERED COMPANY AND THAT APART FROM PRODUCI NG 10 COPIES OF INVOICES AMOUNTING TO RS.22,250/- MONEY RECEIPT ALS O ENCLOSED AND THE AO HAS NOT CAUSED ANY ENQUIRIES IN THIS REGARD. AS REGARDS MISCELLANEOUS FREIGHT BILLS THE APPELLANT FURNISHED ONLY FREIGHT ACCOUNT WITHOUT ANY SUPPORTING EVIDENCES. III. IT IS NOT CORRECT ON THE PART OF THE APPELLANT TO SAY THAT THE AO HAS NOT CONDUCTED ANY ENQUIRIES. IT IS THE RESPONSIBILITY A ND ONUS TRUSTED ON THE APPELLANT TO PRODUCE THE NECESSARY EVIDENCES. IT ON LY PRODUCED EVIDENCE TO THE EXTENT OF RS.23,500/- BY WAY OF PR ODUCING 1 COPIES OF INVOICES. AS SUCH FOR THE REMAINING AMOUNT OF RS.28 ,796/- NO DOCUMENTARY EVIDENCE WHATSOEVER PRODUCED BY THE APP ELLANT. ACCORDINGLY I DIRECT THE AO TO RESTRICT THE ADDITIO N TO RS.28,796/- OUT OF TOTAL DISALLOWANCE OF RS.52,046/-. AS REGARDS MISCE LLANEOUS FREIGHT BILLS THE APPELLANT FAILED TO PRODUCE ANY SUPPORTING EVID ENCE TO JUSTIFY THE EXPENDITURE OF RS.38,235/-. HOWEVER TAKING INTO CON SIDERATION THE TURNOVER OF THE COMPANY AND CIRCUMSTANCES, I DIRECT THE AO TO DISALLOW 20% OF RS.38,235/- WHICH IN MY OPINION IS REASONABL E ENOUGH TO TAKE ITA NO. 959/KOL/2009 A.Y. 2000-01 ACIT,CIR-42 KOL. V. M.S M.M. EXPORTS PAGE 16 CARE OF ANY INFLATION IN FREIGHT BILLS. THIS IS BECAUSE THE LD. AR BROUGHT TO MY NOTICE THA T ALL THESE MISCELLANEOUS FREIGHT BILLS BELONG TO LOCAL TRANSPO RT BY WAY OF CARTAGE, HAMAIIL CHARGES ETC. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) REVENUE IS IN APPEAL BEFORE US. 26. BEFORE US THE LD. AR DEMONSTRATED THAT THE COPI ES OF THE BILLS FOR AN AMOUNT OF RS. 23,250.00 OF M/S NATWAR PARIKH INDUST RIES TOWARDS FREIGHT CHARGES WERE SUBMITTED BEFORE THE AO AT THE TIME OF REMAND REPORT. THE AO COULD HAVE MADE ENQUIRY UNDER SECTION 133(6) OF THE ACT FOR ESTABLISHING THE GENUINENESS OF THE EXPENSES. REGARDING THE OTHER FR EIGHT EXPENSES, THE LD. AR SUBMITTED THAT THE NECESSARY DETAILS IN SUPPORT OF THE EXPENSES WERE FURNISHED BEFORE THE AO AT THE TIME OF REMAND REPOR T. FROM THE AFORESAID DISCUSSION WE FIND THAT THE ABOV E SAID EXPENSES WERE DISALLOWED BY THE AO DUE TO NON AVAILABILITY OF THE SUPPORTING DOCUMENTS. HOWEVER SOME DETAILS WERE SUBMITTED BEFORE THE AO A T THE TIME OF THE REMAND REPORT. ACCORDINGLY THE LD. CIT(A) GRANTED T HE RELIEF TO THE ASSESSEE. HOWEVER THE ARGUMENT OF THE LD. AR THAT THE FREIGHT CHARGES TO NATWAR PARIKH INDUSTRIES COULD HAVE BEEN VERIFIED BY ISSUING THE NOTICE UNDER SECTION 133(6) IS NOT TENABLE AS IT IS THE DUTY OF THE ASSESSEE TO PROVIDE THE INFORMATION AS DESIRED BY THE AO IN CONNECTION WITH THE ASSESSMENT PROCEEDINGS. WE ALSO FIND THAT THE ASSESSEE COULD NOT PRODUCE THE NECESS ARY SUPPORTING EVIDENCE BEFORE THE LOWER AUTHORITIES IN CONNECTION WITH OTH ER FREIGHT CHARGES. CONSIDERING THE FACTS IN TOTALITY AND TURNOVER OF T HE ASSESSEE, WE DO NOT WANT TO INTERFERE IN THE ORDER OF THE LD. CIT(A). HENCE THIS GROUND OF REVENUE APPEAL IS DISMISSED. 27. GROUND NO.7 RAISED BY REVENUE IN THIS APPEAL IS THAT LD. CIT(A) ERRED IN ALLOWING 90% OF THE SALE PROCEEDS OF THE DEPB LI CENSE AS ALLOWABLE DEDUCTION U/S 80HHC(3) OF THE ACT. ITA NO. 959/KOL/2009 A.Y. 2000-01 ACIT,CIR-42 KOL. V. M.S M.M. EXPORTS PAGE 17 28. DURING THE YEAR ASSESSEE HAS MADE A SALE OF DEP B LICENSE AND EARNED AN AMOUNT OF RS. 2,15,29,749/-. THE TURNOVER OF ASS ESSEE FOR THE RELEVANT YEAR WAS MORE THAN RS.10 CRORES. THE AO FOUND THAT IN VIEW OF THE INSERTION OF CLAUSE (A) & (B) UNDER THE 3 RD PROVISO OF SUB SECTION (3) IN SEC. 80HHC WITH RETROSPECTIVE EFFECT FROM 1 ST APRIL, 1998 THE ASSESSEE WAS NOT ALLOWED TO CLAIM THE DEDUCTION OF THE PROFIT ON SALE OF DEPB LICENSE U/S 80HHC OF THE ACT. THEREFORE, THE CLAIM OF ASSESSEE U/S 80HHC WAS DISA LLOWED AND ADDED TO THE TOTAL INCOME OF ASSESSEE. 29. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) WHERE THE ASSESSEE SUBMITTED THAT THE CONDITIONS MENTIONED IN THE 3RD PROVISO TO SECTION 80HHC ARE VERY MUCH FULFILLED. ACCORDINGLY THE LD.CIT(A) AFTER CONSIDERING THE ASSESSEE SUBMISSION AND REMAND REPO RT OF THE AO CONCLUDED THAT THE DEDUCTION IS AVAILABLE TO THE ASSESSEE BY OBSERVING AS UNDER :- I. I HAVE PERUSED THE PROVISIONS OF SECTION 80HHC OF I.T ACT AND ALSO EXPORT & IMPORT POLICY (1997-2002) AND THE CONTENTI ONS RAISED BY THE APPELLANT AS AGAINST THE DISALLOWANCE OF CLAIM ON A CCOUNT OF PROFIT ON SALE OF DEPB LICENSE U/S. 80HHC(3) OF PROVISO (A) & (B). II. THE TWO CONDITIONS LAID DOWN U/S. 80HHC(3) WITH REGARD TO THE CLAIM OF 90% OF SALE PROCEEDS OF DEPB LICENSE ARE: I) THE ASSESSEE SHOULD HAVE AN EXPORT TURNOVER EXCE EDING RS.10 CRORES DURING THE PREVIOUS YEAR. II) THE ASSESSEE SHOULD HAVE NECESSARY AND SUFFICIE NT EVIDENCE TO PROVE THAT: (A) HE HAD AN OPTION TO CHOOSE EITHER THE DUTY DRAW BACK OR DEPB SCHEME ; AND (B) THE RATE OF DRAW BACK CREDIT ATTRIBUTABLE TO TH E CUSTOMS DUTY WAS HIGHER THAN THE RATE OF CREDIT ALLOWABLE UNDER DEPB SCHEME. AS CONTENDED BY THE APPELLANT THE TWO MAIN CONDITI ONS PRESCRIBED U/S. 80HHC(3) HAVE BEEN FULFILLED BY TH E APPELLANT AND ACCORDINGLY THE APPELLANT IS ELIGIBLE TO CLAIM THE DEDUCTION OF 90% OF THE SALE PROCEEDS OF THE DEPB LICENSE IN COM PUTING DEDUCTION U/S. 80HHC OF THE ACT. ITA NO. 959/KOL/2009 A.Y. 2000-01 ACIT,CIR-42 KOL. V. M.S M.M. EXPORTS PAGE 18 III. AS REGARDS THE OBJECTION OF THE AO THAT PARA 7 .14 PERTAINS TO IMPORT OF GOLD/SILVER, I HAVE PERUSED THE ENTIRE TE XT OF THE EXPORT AND IMPORT POLICY AND IT IS VERY CLEAR FROM THE REP ORT THAT THE AO MISREAD THE PARA 7.14 OF THE HANDBOOK OF PROCEDURES INSTEAD OF PARA 7.14 OF THE FOREIGN TRADE POLICY. AS CONTENDED , IF THE APPELLANTS BUSINESS ACTIVITIES ARE NOT ELIGIBLE AS PER EXPORT & IMPORT POLICY THE APPELLANT WOULD OT HAVE GRANTED D EPPB LICENSE AT ALL. IN VIEW OF THE MATTER I AM TO HOLD THAT THE APPELLA NT HAS CORRECTLY CLAIMED THE DEDUCTION U/S. 80HHC(3) ON ACCOUNT OF S ALE OF DEPB LICENSE. ACCORDINGLY, I DIRECT THE AO TO ALLOW THE BENEFIT OF 90% SALE PROCEEDS OF DEPB LICENSE WHILE COMPUTING THE B ENEFITS U/S. 80HHC. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) REVENUE CAME IN APPEAL BEFORE US. 30. BEFORE US THE LD. DR VEHEMENTLY SUPPORTED THE V IEW OF THE AO. ON THE OTHER HAND THE LD. AR WHILE STRONGLY RELYING ON THE ORDER OF LD. CIT(A) SUBMITTED THAT THE ASSESSEE WAS HAVING THE OPTION O F AVAILING EITHER DUTY DRAWBACK OR THE DEPB IN TERMS OF THE SECTION 5 OF T HE FOREIGN TRADE (DEVELOPMENT & REGULATIONS) ACT. FOR THE CONDITION SPECIFIED UNDER CLAUSE (B) OF 3 RD PROVISO TO SECTION 80HHC(3), THE LD. AR SUBMITTED THAT THE CUSTOM DUTY LEVIABLE ON THE GOODS WAS 35% AND DEPB ENTITLE MENT WAS ONLY 20%. HENCE THE LD. AR PLEADED THAT SINCE BOTH THE CONDIT IONS SPECIFIED IN CLAUSE (A) & (C) TO THE 3 RD PROVISO TO SECTION 80 HHC (3) HAVE BEEN FULFILLED, SO THE DEDUCTION UNDER SECTION 80HHC FOR THE PROFIT ON SAL E OF DEPB LICENSE. 31. WE HAVE HEARD RIVAL PARTIES AND PERUSED THE MAT ERIALS AVAILABLE ON RECORD. FROM THE FACTS OF THE CASE WE FIND THAT THE AO HAS DISALLOWED THE DEDUCTION CLAIMED BY THE ASSESSEE UNDER SECTION 80H HC OF THE ACT ON THE GROUND THAT THE ASSESSEE HAS NOT FULFILLED THE COND ITION SPECIFIED UNDER CLAUSE (A) & (B) TO THE PROVISO OF SECTION 80HHC(3) OF THE ACT. HOWEVER THE LD. CIT(A) ALLOWED THE SAME ON THE GROUND THAT ALL THE AFORESA ID CONDITIONS HAVE BEEN FULFILLED BY THE ASSESSEE. NOW LET US EXAMINE THE R ELEVANT PROVISIONS OF CLAUSE ITA NO. 959/KOL/2009 A.Y. 2000-01 ACIT,CIR-42 KOL. V. M.S M.M. EXPORTS PAGE 19 (A) & (B) TO 3 RD PROVISO TO SUB SECTION 3 OF SECTION 80HHC OF THE ACT WHICH READS AS UNDER : PROVIDED ALSO THAT IN THE CASE OF AN ASSESSEE HAVI NG EXPORT TURNOVER EXCEEDING RUPEES TEN CRORES DURING THE PREVIOUS YEA R, THE PROFITS COMPUTED UNDER CLAUSE (A) OR CLAUSE (B) OR CLAUSE ( C) OF THIS SUB-SECTION OR AFTER GIVING EFFECT TO THE FIRST PROVISO, AS THE CASE MAY BE, SHALL BE FURTHER INCREASED BY THE AMOUNT WHICH BEARS TO NINE TY PER CENT OF ANY SUM REFERRED TO IN CLAUSE (IIID) OF SECTION 28, THE SAME PROPORTION AS THE EXPORT TURNOVER BEARS TO THE TOTAL TURNOVER OF THE BUSINESS CARRIED ON BY THE ASSESSEE, IF THE ASSESSEE HAS NECESSARY AND SUF FICIENT EVIDENCE TO PROVE THAT,- (A) HE HAD AN OPTION TO CHOOSE EITHER THE DUTY DRAW BACK OR THE DUTY ENTITLEMENT PASS BOOK SCHEME, BEING THE DUTY REMISSION SCHEME; AND (B) THE RATE OF DRAWBACK CREDIT ATTRIBUTABLE TO THE CUSTOMS DUTY WAS HIGHER THAN THE RATE OF CREDIT ALLOWABLE UNDER THE DUTY ENTITLEMENT PASS BOOK SCHEME, BEING THE DUTY REMISS ION SCHEME: NOW TO AVAIL THE BENEFIT UNDER SECTION 80HHC FOR TH E PROFIT ARISING FROM THE SALE OF THE DEBT LICENSE THE ABOVE SAID TWIN CONDIT IONS NEEDS TO BE SATISFIED. WE ACCORDINGLY FIND FROM THE SUBMISSION OF THE ASSE SSEE THAT BOTH THE CONDITIONS HAVE BEEN FULFILLED AS PROVIDED IN (A) A ND (B) OF THIRD PROVISO TO SECTION 80HHC OF THE ACT. THE RELEVANT POLICY OF TH E DEPB IN TERMS OF PARAGRAPH 7.14 OF THE FOREIGN TRADE POLICY NOTIFIED U/S 5 OF THE FOREIGN TRADE (DEVELOPMENT & REGULATION) ACT IS SET OUT HEREIN BE LOW: FOR EXPORTERS NOT DESIROUS OF GOING THROUGH THE LI CENSING ROUTE, AN OPTIONAL FACILITY IS GIVEN UNDER DEPB. THE OBJECTIV E OF DUTY ENTITLEMENT PASS BOOK SCHEME IS TO NEUTRALIZE THE INCIDENCE OF CUSTOMS DUTY ON THE IMPORT CONTENT OF THE EXPORT PRODUCT. THE NEUTRALIZ ATION SHALL BE PROVIDED BY WAY OF GRANT OF DUTY CREDIT AGAINST THE EXPORT PRODUCT. UNDER THE DUTY ENTITLEMENT PASSBOOK SCHEME (DEPB) A N EXPORTER MAY APPLY FOR CREDIT, AS A SPECIFIED PERCENTAGE OF FOB VALUE OF EXPORTS, MADE IN FREELY CONVERTIBLE CURRENCY. THE CREDIT SHA LL BE AVAILABLE AGAINST SUCH EXPORT PRODUCTS AND AT SUCH RATES AS M AY BE SPECIFIED BY THE DIRECTOR GENERAL OF FOREIGN TRADE BY WAY OF A P UBLIC NOTICE ISSUED IN ITA NO. 959/KOL/2009 A.Y. 2000-01 ACIT,CIR-42 KOL. V. M.S M.M. EXPORTS PAGE 20 THIS BEHALF, FOR IMPORT OF RAW MATERIALS, INTERMEDI ATES, COMPONENTS, PARTS, PACKAGING MATERIALS, ETC. THE HOLDER OF DUTY ENTITLEMENT PASSBOOK SCHEME (DEP B) SHALL HAVE THE OPTION TO PAY ADDITIONAL CUSTOMS DUTY, IF ANY, IN CASH AS WELL. FOR THE CONDITION SPECIFIED IN CLAUSE (B) THE ASSES SEE SUBMITTED THAT THE DRAWBACK CREDIT ATTRIBUTABLE TO CUSTOM DUTY WAS 35% IN TERMS OF CUSTOM TARIFF HEADING 7018 AND WHERE AS THE DEPB ENTITLEME NT WAS ONLY 20%. WE ALSO FIND THAT THE LD. DR HAS NOT BROUGHT ANYTHING CONTRARY TO THE FINDINGS OF THE LD. CIT(A). IN VIEW OF ABOVE WE FIND NO REASON TO INTERFERE IN THE ORDER OF THE LD. CIT(A). THEREFORE WE DISMISS THE GROUND OF REVENUE. 32. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 20/ 01/2016 SD/- SD/- (N.V.VASUDEVAN) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP !- 20 / 0 1/201 6 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ACIT,CIR-42, 18, RABINDRA SARANI, PODDAR COURT, 4 TH FL, KOL-01 2. /RESPONDENT-M/S M.M. EXPORTS 22, MADAN MOHON TOLA S TREET, KOLKATA-05 3. ) *+ , , - / CONCERNED CIT KOLKATA 4. , , -- / CIT (A) KOLKATA 5. 012 33*+, , *+ , / DR, ITAT, KOLKATA 6. 267 89 / GUARD FILE. BY ORDER/ , , /TRUE COPY/ / , *+ ,