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TMI Blog2017 (3) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act by holding M/s AP TRADERS as a bogus party in spite of the fact that such party held a valid registration certificate under West Bengal Value Added Tax Act, 1995 and the registration number of the party-appeared in the purchase bills produced during the course of the assessment proceedings. 2. That, the learned Commissioner of Income Tax (Appeals) had failed to appreciate that the original assessment order passed u/s 143(3) of the Act was held to be erroneous and was directed to be revised u/s 263 of the Act on the ground that the alleged violation u/s 40A(3) was not properly considered in ti le said assessment order (Para-2, Page-25 -of the Paper Book enclosed in Part-B) and there was no discussion in the order passed u/s 263 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rried the matter in appeal . The first appellate authority confirmed the addi tion. Further, being aggrieved, the assessee is in appeal before the Tribunal . 3. Though the assessee has taken five grounds of appeal , in fact, only one addition is disputed, i .e. an amount of Rs. 37,95,866/-, being payment made to M/s. Apex Traders. Goods were claimed to have been purchased by payment through cheques. But enquiries revealed that the cheques were, in fact, bearer cheques. The notices issued under section 133(6) of the Act to M/s. Apex Traders got returned with the comments from the postal authorities that the address given is a wrong address. Enquiry made by the Income Tax Inspector did not give any result and the party could not be located a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issued an audit report under section 30E under West Bengal Value Added Tax Act, 2003 in Form No. 88 on 14.12.2009 considering these purchases and sales and had not found any discrepancy. The Sales Tax Department accepted these purchases and sales as genuine. (g) The Assessing Officer has not doubted the sales of these goods and under such circumstances, the purchases cannot be doubted. (h) The assessee cannot be held responsible if the person from whom goods are purchased is not available at the address given in the bills after the lapse of a substantial period of time as they would have shifted the place of business and were under no obligation to inform the same to the assessee. (i) That the assessee has produced all possible evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of account and the book results have been disturbed disallowing the said purchase. The figures of sales and closing stock have not been commented upon by the Assessing Officer. The assessee has failed to give the correct address of M/s. Apex Traders. The assessee has produced sales tax registration details of M/s. Apex Traders but no other details have been given. The books of account of the assessee are audited and the auditors who furnished the audit report under section 30E of the West Bengal Value Added Tax Act, 2003 have not found any discrepancy in the purchases from M/s. Apex Traders. The Assessing Officer in this case has not made any enquiries from the Sales Tax Department. Keeping in view the VAT returns filed by the assessee, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uest ion of law is involved in this matter. Hence the appeal being ITA No. 202 of 2008 is dismissed". 8. In the case on hand, as payments are made in cash, the Assessing Officer as well as the ld. CIT(Appeals) have rightly suspected the genuineness of the same. The assessee has not been able to lead any third party evidence in support of its claim. The only valid argument is that there could be no sales without purchases. But the price at which the goods were purchased remained a grey colour when admittedly the payment was made in cash. As the undisputed fact that the payments were made in cash under section 40A(3) is attracted as pointed out by the ld. CIT(Appeals) in his order passed under section 263 of the Act. In view of the above dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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