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TMI Blog2013 (12) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... estion - To prove the genuineness of the purchase and sale the supporting material has to be produced to show that the transactions in question are backed by actual delivery - The issue was restored for fresh adjudication. - I.T.A. No.2107/M/2012, I.T.A. No.2108/M/2012, I.T.A. No.3564/M/2012 - - - Dated:- 17-10-2013 - Shri Vijay Pal Rao, JM And Shri N. K. Billaiya, AM,JJ. For the Appellant : Shri Bhupendra Shah For the Respondent : Shri R. K. Sahu ORDER Per : Vijay Pal Rao, JM These three appeals by the assessee are directed against the respective orders of the Commissioner of Income Tax(Appeals) for the assessment years 2006-07, 2008-09 and 2009-10. 2. The assessee has raised common grounds in these appeals except the amount of addition. The grounds raised for the assessment year 2006-07 are as under: 1. Under the facts and circumstances of the case of your Appellate, the Ld. CIT(A) erred in confirming the addition of Rs. 28,72,536/- made by Ld. A.O. as Unexplained/unproved purchase/investments in purchase as per Section 69 of the I.T. Act, 1961. 2. Your Appellate, therefore, prays that the addition of Rs. 28,72,536/- should be deleted. 3. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot acceptable at this stage when the statement was made voluntarily and was not alleged to have been obtained under threat or coercion. Accordingly, the AO held that the assessee has obtained the accommodation bills for the respective amounts from the family group concerns of Shri Rakeshkumar Gupta to inflate/accommodate his purchases. The AO made the addition for the entire amount of purchases shown from the group concerns of Shri Rakeshkumar Gupta. On appeal, the CIT(A) has confirmed the action of the AO by recording the reason that the assessee has filed to discharge his onus and proving that purchase from the group concerns of Shri Rakeshkumar Gupta were genuine. 4. Before us the Ld. AR of the assessee has submitted that an identical issue has been considered and decided by this Tribunal in assessee s own case for the assessment year 2007-08 vide order dated 21.11.2012. The Ld. AR of the assessee has submitted that the assessees has explained all the details and file the relevant record to prove that the purchases made from the group concerns of Shri Rakeshkumar Gupta are genuine. The Ld. AR has referred the various purchase bills and details of purchase and sales item wise. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further submitted that the statement recorded during the course of survey proceeding as well as u/s 131 of the Income Tax Act were duly supported by the evidence found during the survey. The Assessing Officer has relied upon the decision of Bangalore Benches of this Tribunal in case of Carpenters Classics (Exim) (P) Ltd. Vs DCIT 108 ITD 142 as well as the decision of this Tribunal in case of Pranav Construction Co. Vs ACIT 61 TTJ 145. The AO has recorded that there is no allegation that the statement recorded during the survey and post survey inquiries are under coercion or threat and therefore, when the statements were given voluntarily by Shri Rakeshkumar Gupta then the retraction is after though and without any basis. In the post survey inquiries it was found that Shri Rakeshkumar Gupta and his group concerns had operated so many bank accounts in different fictitious proprietor concerns which were not disclosed to the department. The modus operandi of issuing accommodation bill against the cheques has been clearly explained by Shri Rakeshkumar Gupta in his statement. The cheques were deposited in the various bank accounts and the amount was immediately withdrawn and after deduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ans: As, I agreed and explained to you that I am doing the activity of issuing the accommodation bills to the various parties. Therefore whatever the sundry creditors shown in the balance sheet are the bogus sundry creditors. I am doing this type of bogus activity from the year 2000 onwards. Since I issued the sales bills to the various parties, / am entitled to receive the payments from the sundry debtors in order h complete such transactions from whom the payments are yet to be received. Que.No.12 Whether similar type of (accommodation entry) modus operandi/business activity are carried out by other concerns? Ans: I confirm that similar accommodation entries al-c made in the following concerns, the details are as under: (i) M/s Shree Ram Sales Synthetics, Prop. Hema R. Gupta from the year 2000 onwards (ii) M/s Astha Silk Industries, Prop. Shri Mohit R Gupta from the year 2000 onwards (iii) M/s Dev-vani Industries, Prop. Nilesh R Gupta from the middle of the year 2007onwards (iv) M/s Sainath Textiles, Prop. Rakeshkumar Madanlal Gupta, HUF from the middle of the year 2007 onwards. Question No.16. Please give the details of the sale bills issued? Ans: The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding accommodation purchase bills to the parties without actual sale and purchase of goods. There was no stock at all found with the concerns of Shri Rakeshkumar Gupta and his family members. It is also not disputed that the purchases in question for all these years are from the concerns of Shri Rakeshkumar Gupta and his family members through which the accommodation bills were being provided. It is not a case of mere recording of statement during the course of survey but statement of Shri Rakeshkumar Gupta was also recorded during the post survey inquiry u/s 131 on 23.2.2009. The relevant part of the said statement recorded u/s 131 was reproduced by the AO at page no. 11 and 12 as under: (2) What is your business and explain to me in detail the modus operandi of your business? Ans: We are doing the activity of issuing the accommodation bills to the various parties. I am doing this type of activity from the year 2000 onwards. As per the request of the various parties from the market, who requires the bills of purchases (it will be sales from my side, I provide the same to them. 1 receive the cheque payments against the said bills which will be deposited into the bank and then wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir requirement of material, quantity and amount, the bills are issued. (10) When you are issuing Sales Bills to the parties, how do you co-relate the purchases? Ans: Blank bill books in the names of different purchase parties will get printed from the market and the purchase bills will be prepared by ourselves as per the requirement. (19). Are you aware that the business activities carried out by you i.e. issuing accommodation bills or doing hawala business is not a permitted one and it is criminal offence you are committing. Do you know the consequences of these activities, once caught? Ans: I know this activity is not a permitted one. However, 1 do not know the consequences of this, once caught. My justification is that I am doing this business just to earn some commission. In that case, the parties those who have taken the advantage of these accommodation bills are to be punished. (20) Do you want to say anything more? Ans; No, The statements given above by me are true and correct to the best of my knowledge and belief. The above statements recorded from me without any compulsion, coercion or threat and the same is given voluntarily in a sound state of mind. The ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nquiry regarding non-existence of any stock and no actual trading of sale and purchase was carried out then the burden is shifted to the assessee to dispel the strong suspicion of the AO based on such record. In discharge of his burden the assessee was required to produce the relevant record and details to prove that the transactions are genuine. The Assessing Officer has recorded in para 6.5 that the assessee did not comply the letter dated 22.11.2010 whereby the assessee was asked to furnish the explanation on or before 26.11.2010. The Co- ordinate Bench of this Tribunal in the assessment year 2007-08 in assessee s own case as held in para 8 to 8.1 as under: 8. We have carefully considered the rival submissions in the light of material placed before us. It will be relevant to reproduce the letter received by the AO from Shri Rakeshkumar Gupta, which is also reproduced in the assessment order: I am in receipt of your summons u/s. 131 of the I.T. Act 1961 in the case of M/s. Jitendra Harshad Kumar Textile Pvt. Ltd. asking me to attend before your goodself with the details of my account with the said M/s. Jitendra Harshad Kumar Textile Pvt. Ltd. for AY.2002-03 2007- 08. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO deserve to be deleted in its entirety. We decide accordingly. 9. As we have already observed that the addition cannot be made solely on the basis of the statement of the third part but since the relevant record has relied upon the assessee before us has not been examined and particularly the alleged bills through which the assessee has claimed to have purchased the material. It is pertinent to note that for all these 3 years the assessee has not shown any opening stock or closing stock which further supports the view of the Assessing Officer that there was no physical purchase and sale of the goods in question. Since, the relevant material has not been examined by the authorities below therefore, in the facts and circumstances of the case and in the interest of justice we set aside the matter to the record of the Assessing Officer for all 3 years for consideration and deciding the same denovo after examination and verification of the record filed by the assessee. While deciding the issue on merits one of the relevant and material aspects is the physical delivery of the goods. Since the assessee has relied upon the affidavits filed by Shri Rakeshkumar Gupta and other family ..... X X X X Extracts X X X X X X X X Extracts X X X X
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