TaxTMI 
TaxTMI 
2019 (7) TMI 294
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....vt. Ltd. as genuine, when the assessee failed to produce these vendors for conformation when asked for by the assessing officers during the assessment proceedings, meaning thereby that the assessee failed to discharge the onus of proving the transactions with the said vendors as genuine. 3. The appellant prays that the order of the CIT(A) on the above ground above set aside and that of the A.O. be restored." 1.2 This is second round of appeal before Tribunal since the matter in the first round was set-aside to the file of Ld.AO for re-adjudication with certain directions vide ITA No.4060/Mum/2012 order dated 19/12/2014.The directions of the Tribunal have already been extracted in the impugned order at para-6, the perusal of which reveal that since Ld. first appellate authority refused to admit the additional evidences filed by the assessee during appellate proceedings, the Tribunal set aside the matter to the file of Ld. AO with a direction to decide the issue afresh after admitting the additional evidences filed by the assessee. 1.3 Brief background is that the assessee being resident corporate assessee was stated to be engaged in providing passive infrastructure se....
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....was received from any of the said parties. Accordingly, the assessee was show-caused to produce the suppliers or to file fresh confirmation from these parties. However, the assessee failed to do so which led the Ld. AO to treat the aforesaid purchases as bogus purchases and accordingly, the depreciation claimed against the purchases amounting to Rs. 1.54 Crores was disallowed whereas the balance amount of Rs. 8.75 crores was reduced from WDV of fixed assets as done in the original re-assessment proceedings. 3.1 Aggrieved, the assessee agitated the same with success before Ld. Ld. CIT(A) vide impugned order dated 27/06/2017 wherein the assessee defended the purchases on the strength of following documents: - (i) Confirmation of Aster Infrastructure Pvt. Ltd. and reconciliation thereto (ii) Confirmation of Aster Teleservices Pvt. Ltd. and reconciliation thereto (iii) Confirmation of R.N.Infra and reconciliation thereto (iv) Copies of sample invoices raised by Aster Infrastructure Pvt. Ltd. providing services of survey site survey, soil testing, design & drawing, liasioning etc. (v) Copies of sample invoices raised by Aster Teleservic....
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....because the parties did not respond to the notices issued u/s 133(6), the purchases could not be treated as bogus specially when the assessee has brought on record substantial documentary evidences to establish the genuineness of the purchase transactions. 3.6 Finally, after careful consideration of assessee's submissions/ documentary evidences & factual matrix, Ld. first appellate authority concurred with assessee's stand and deleted the impugned additions by observing as under: - 21. I have carefully perused the assessment order of the AO and the submissions made by the AR in support of his arguments. After taking into consideration, the A.O's findings and the appellant's oral and written submissions made during the course of hearing as well as facts of the case, decision on various grounds are adjudicated as under: 22. Ground Nos. 1 to 4 22.1 Vide these grounds the appellant has agitated against disallowing deduction of Rs. 1,54,57,360/- out of purchase of tower infrastructure. The appellant filed the return of income for A.Y.2008-09 on 30.09.2008 declaring a loss of Rs. 29,76,99,510/-. Subsequently revised return was filed on 22.03....
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....4,57,360/-. 22.3 While treating the purchases as bogus the Id.A.O. mentioned in the order that since no response was received u/s.133(6), therefore the appellant was requested to file confirmation from M/s. Aster Infrastructure P. Ltd. and RN Infra Communication P. Ltd. According to the A.O., no such confirmation was filed by the appellant. The_appellant strongly refused the findings of the A.O. and submitted that vide its letter dated 12.08.2015 the appellant filed vendor reconciliation statement and vendor confirmation in respect of Aster Infrastructure P. Ltd., Aster Teleservices P.Ltd. and RN Infra Communication P. Ltd. Sample copies of invoices were also furnished before the A.O. The letter submitted by the appellant is placed at page 58 of the paper book which bears the stamp of the DCIT 9(1)(2) also. 22.4 During the course of assessment proceedings, confirmed copies of accounts of Aster Infrastructure P. Ltd. and RN Infra Communication P. Ltd. alongwith sample copies of invoices were furnished by the appellant. During the course of appellate proceedings, the following documents were produced: (i) Confirmation of Aster Infrastructure Pvt. L....
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....Company, who has taken the tower on lease. Details included RFIE date, which is the date on which the tower was ready for inspection / installation. (c) Specimen RFI certificates correlating with Serial No. of towers constructed during the year were filed in respect of Serial No. 122, 126, 129, 243, 312, 314, 320, 322, 323, 325, 327, 329,495, 505 6V 506. 22.5 Regarding noncompliance of notices u/s.133(6) by Aster Teleservices P. Ltd. it was submitted that the above-mentioned company went into liquidation and as a result its office was taken by the official liquidator. In support of the genuineness of Aster Teleservices P. Ltd. the appellant submitted the acknowledgement receipt of income tax return for A.Y.2008-09: It was further contended that for A.Y.2008-09 Aster Teleservices P. Ltd. it declared total income of Rs. 89,68,66,830/- and it had paid taxes of Rs. 30,57,52,014/-. In view of these financial results, the appellant claimed that Aster Teleservices P, Ltd. cannot be a hawala operator. It was further contended that transactions with Aster Infrastructure P. Ltd., Asther Teleservices P. Ltd. and RN Infra Communication P. Ltd. were also made in A.Y.2009-10 an....
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.... Communication P. Ltd. but material purchased was also utilized for the construction of tower. The appellant also explained the reason of non-compliance of notice u/s.l33(6). In view of various evidences produced by the appellant and judgements in the case of CIT v. Nikunj Eximp Enterprises Pvt. Ltd. and ITO v. Vaman International P. Ltd., the disallowance of depreciation made by the A.O. is deleted and the appeal of the appellant is allowed. Aggrieved, the revenue is in further appeal before us. 4. The Ld. CIT-DR, Shri Anadi Verma pointed out that critical documentary evidence viz. notices sent u/s 133(6) to the concerned suppliers, even during remand proceedings were not responded to and the assessee could not produce any of the supplier to confirm the transactions which establishes that the purchases were not genuine. It has been submitted that the onus to prove the purchases beyond doubt remained undischarged by the assessee and Ld. first appellate authority, without making any further inquiries or verifying the documents, provided relief to the assessee which was not justified in the given circumstances. Reliance has been placed on following judicial pronouncements to su....
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....d by us in para 3.1 above. It is noted that the three suppliers under question were corporate entities who were duly registered under respective State Sales Tax / VAT, had registration under Excise Laws / Service Tax. The material was purchased by the assessee against C Form. The proof of insurance of the material was placed on record. The purchases were backed by excise invoices which carried transporter's details. The assessee demonstrated trail of purchased material on sample basis with respect to the suppliers. The assessee has obtained certain services from these entities and made the payment thereof after deduction of appropriate tax at source u/s 194 C / 194J. All the payments were through banking channels. The confirmation of account as well as reconciliation of balances was available on record. Further, similar purchases made by the assessee in subsequent AY 2009-10 has been accepted. The assessee erected approx. 610 new Towers during the year which was uniquely identifiable and the same could not have been achieved without actual purchase of the material. The assessee has placed on record the Income Tax Return as well as VAT returns for impugned AY 2008-09 in respect o....