2017 (1) TMI 987 - AT - Income Tax

Addition u/s 69C - bogus purchases - Held that - AO has not brought on record any material evidence to conclusively prove that the said purchases are bogus. Mere reliance by the AO on information obtained from the Sales Tax Department or the sworn statement of two parties before the Sales Tax Department, without affording the assessee any opportunity to cross examine those witnesses in this regard or the fact that these parties did not respond to notice under section 133(6) of the Act, would not in itself suffice to treat the purchases as bogus and make the addition. If the AO doubted the genuineness of this said purchases, it was incumbent upon him to cause further inquiries in the matter to ascertain the genuineness or otherwise of the transactions. Without causing any further enquires in respect of the said purchases, the AO cannot make the addition under section 69C of the Act by merely relying on information obtained from the Sales Tax Department, the statement/affidavit of third parties, Shri Pradeep Vyas and Ketan Shah; without the assessee being afforded any opportunity of cross examination of that persons and for non-response to notices under section 133(6) of the Act. Moreover, as correctly observed by the learned CIT(A), when the payment for the said purchases to the concerned two parties is through proper banking channels and there is no evidence brought on record by the AO to establish that the said payments were routed back to the assessee, the addition made by the AO under section 69C of the Act is unsustainable. - Decided in favour of assessee.

Issues Involved:
1. Deletion of addition under section 69C of the Income Tax Act, 1961 for non-genuine purchases.
2. Non-response of vendors to notices under section 133(6) of the Act.
3. Lack of delivery challans and physical stock registers to prove actual delivery of goods.
4. Adherence to principles of natural justice and opportunity for cross-examination.

Detailed Analysis:

Issue 1: Deletion of Addition under Section 69C
The core issue revolves around the deletion of an addition amounting to ?4,75,42,385/- made by the Assessing Officer (AO) under section 69C of the Income Tax Act, 1961, treating the purchases from two vendors, M/s. Impex Trading Co. and M/s. Victor Intertrade Pvt. Ltd., as non-genuine. The AO's decision was based on information from the Sales Tax Department indicating that the vendors provided accommodation entries without actual business transactions. The assessee, however, provided substantial documentary evidence, including purchase and sales invoices, stock ledger extracts, and bank statements showing payments made through banking channels. The CIT(A) found that the AO's reliance on the sworn statements of the vendors without allowing cross-examination and without further inquiry was insufficient to prove the purchases as bogus. The CIT(A) deleted the addition, citing legal infirmities and the lack of material evidence from the AO to substantiate the claim of bogus purchases.

Issue 2: Non-response of Vendors to Notices
The AO issued notices under section 133(6) to the vendors, which went unanswered. The AO used this non-response as a basis to question the genuineness of the purchases. However, the CIT(A) and later the ITAT held that non-response alone does not justify treating the purchases as bogus, especially when the assessee provided extensive documentary evidence supporting the transactions. The ITAT emphasized that the AO should have conducted further inquiries to verify the transactions instead of solely relying on the non-response.

Issue 3: Lack of Delivery Challans and Physical Stock Registers
The AO noted the absence of delivery challans, transportation bills, and physical stock registers as part of the evidence to support the genuineness of the purchases. Despite this, the assessee provided other substantial evidence, such as purchase/sale invoices and stock ledger extracts. The CIT(A) and ITAT found that the AO's focus on the absence of specific documents was insufficient to discredit the entire transaction, especially when other credible evidence was presented.

Issue 4: Adherence to Principles of Natural Justice and Opportunity for Cross-examination
A significant procedural issue was the AO's reliance on the sworn statements of the vendors without offering the assessee an opportunity for cross-examination. The CIT(A) highlighted that this violated principles of natural justice. The ITAT supported this view, noting that the AO's failure to allow cross-examination and to conduct further inquiries undermined the validity of the addition under section 69C. The ITAT cited several judicial precedents, including the Hon'ble Bombay High Court's decision in Nikunj Eximp Enterprises P. Ltd., to reinforce the necessity of cross-examination and proper inquiry.

Conclusion:
The ITAT upheld the CIT(A)'s decision to delete the addition under section 69C, emphasizing the lack of substantial evidence from the AO and the procedural lapses, including the denial of cross-examination. The appeal by Revenue was dismissed, affirming that the purchases were genuine based on the evidence provided by the assessee and the failure of the AO to disprove the transactions conclusively.

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