TaxTMI 
TaxTMI 
2019 (8) TMI 992
X X X X Extracts X X X X
X X X X Extracts X X X X
....e tribunal") read as under:- 1.a) "Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in granting relief of Rs. 1,90,95,000/- to the assessee by ignoring the fact that the assessee has not proved the nature and source of the cash credits within the meaning of section 68 of the Income-tax Act, 1961?". b) Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in granting relief of Rs. 1,90,95,000/- to the assessee by ignoring the fact stated under Rule 46A that the appellant shall not be entitled to produce before the Ld. CIT(A), any evidence, whether oral or documentary, other than the evidence produced by him during the course of proceedings before the AO, except in circumstances mentioned in Rule 46A(i) (a) to (d)?". 2.a) "Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in restricting the disallowance on bogus purchases to 12.5% i.e. Rs. 40,74,835/-thereby granting a relief of Rs. 92,54,561/- by ignoring the fact that neither the party nor the confirmation letter was produced during the course of assessment proceedings which would prove ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ming scrutiny assessment u/s 143(2) r.w.s. 143(3) of the 1961 Act. During the course of aforesaid assessment proceedings, the AO observed that the assessee has received various receipts which stood credited to bank account of the assessee by way of unsecured loans to the tune of Rs. 2,88,60,868/- . The assessee submitted some details before the AO with respect thereto and finally the assessee was show caused by the AO as to why following unsecured loans totalling to Rs. 1,90,95,000/- be not added as income of the assessee as cash credit within the provisions of Section 68 of the Act, as detailed under:- Sr. No. Name of the parties as per submission Date of transaction Amount credited (Rs.) Remark 1. Ambition Plaza Pvt. Ltd. 21.10.2010 10,00,000 Bank Entry Details: RTGS: Ambition Plaza Pvt. Ltd. UTR No. HDFCH102494425365 Sender Bank: HDFC Bank Ltd. Sender Branch: Buraqbazar Kolkata/HDFC0000219 2. Atul Ratilal Shah 19.04.2010 1,00,000 RTGS ATUL RATILAL SHAH BARBH10109828280 3. Big Scale Shipping Pvt. Ltd. 25.10.2010 40,00,000 RTGS: 3rd floor, KOHIAR HOUSE 4(tm) MARINE S UTR NO. PUNBH 10298064724 Sender Bank: PUNJAB NATIONAL ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....itor that the said money can not be technically shown as share application money as our company did not have required authorized capital. We had asked the investors to give confirmation of accounts and other details which was not give as in their books of account said money was shown as share application money. Thus to this contradiction they did not provide us any further details also. This money which was taken from investors .was further paid by us as additional security deposits for works to Shayona Corporation which they further paid to Muncipal Corporation. The said deposit was refunded to us by M/s. Shayona Corp. On receipt of same from corporation as and when refunded. The same was paid back to us and we refunded the same to investors immediately as per the commitments made to them. We have received payment from M/s. Shayona Corporation dated 12/07/2012 vide transfer in our PNB Thane Account which was paid back by us immediately on the same day which can be confirmed with our bank statements (attached at Page C-l-Pg. C2). 3.4 The AO observed that vide letter dated 20.03.2014, the assessee has furnished name and addresses , PAN no. of the above ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al before Ld. CIT(A) . The assessee claimed before learned CIT(A) that it proved genuineness of loan transactions before the AO but assessee‟s contentions were not considered by the AO. The assessee claimed that it filed letters on 29.02.2014 , 02.03.2014 and on 20.03.2014 wherein all details were submitted but reply dated 20.03.2014 was not considered by the AO while framing assessment order dated 27.03.2014. 4.2 The assessee submitted before learned CIT(A) that submissions before the AO were delayed due to following reasons:- "1) Loan from Sandhya Ratilal Shah was shown in the books of Appellant in the name of Atul Ratilal Shah. Likewise loan from Jayesh B. Shah was shown in the books of Appellant in the name of Veenaben Shah. Thus the confirmations were delayed for reconciliation. 2) Now, amount received from Ambition Plaza Private Limited and Seva Bhawan Private Limited was received as share application money for future expansion. Though, subsequently it was found that the Appellant was not permitted to issue shares due to restriction of Authorized Share Capital. Thus the Appellant had undergone a dispute with the said parties, precisely - Ambition Pl....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... address of following 8 unsecured loan parties to prove the genuineness of the transactions. 3. Further, the Appellant is submitting ledger confirmations and bills of 12 purchase parties. Submission dated 19th February 2016 With reference to above, we have to state that we had received your notice dated 02nd February, 2016 on 5th February, 2016 for the Appeal No. CIT(A)-18/IT-108/ITO-8(3)(4)/ 14-15 regarding submission of documents. The documents being submitted are as follows: 1. Copy of Ledger Confirmation of 8 parties as mention in Notice. 2. Copy of Covering Letters of Submissions made to the Assessing Officer. 3. Copy of Ledger Confirmations along with bills of Purchase of 12 parties mentioned in the notice." 4.4 The assessee also claimed before learned CIT(A) that the AO has not granted reasonable opportunity and time to produce evidences and passed an assessment order making aforesaid additions to the income of the assessee. The assessee submitted additional evidences before learned CIT(A) by invoking Rule 46A of the Income-tax Rules, 1962 and prayers were made for admission of these additional evidences, the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and verifying the facts and so on. b) Any evidence not submitted during the course of assessment proceedings may kindly be treated as additional evidence as per Income Tax Act, 1961. Admissibility may kindly be considered as per Income Tax Act 1961 and Income Tax Rule 1962. c) No." The said remand report was confronted to the appellant and vide letter dated 08.03.2017 stated as follows: "The Assessing Officer has not given us reasonable opportunity and time to produce evidence in loan confirmations and got delayed due to dispute between the loan parties and company. The reason was known to Assessing Officer though order has been passed disallowing the same. The confirmation we were unable to submit was due to dispute about the either for holding stake in company or for the rate of interest. The above additional information goes to root of the cause of addition and therefore it is a humble request to your honour to admit additional evidence under Rule 46A of the Income Tax i.e. the confirmation which we could not submit to Assessing Officer before passing the order or which were not considered by the Assessing Officer at the time of Assessment u/s....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... record . We have observed that the assessee is engaged in the business of execution of contracts for transportation of waste, waste management, works contracts and sub-contracts. We have observed that the assessee had carried out various works of Municipal Corporation of Greater Mumbai and Thane Municipal Corporation as subcontractor. We have observed that the assessee has received share application money/unsecured loans to the tune of Rs. 1,90,95,000/- from eight parties which stood credited to its bank account which is a subject matter of dispute between rival parties as to satisfaction of mandate of Section 68 of the 1961 Act. The AO while framing assessment u/s 143(3) concluded that the assessee had failed to discharge its onus u/s 68 of the 1961 Act with respect to these cash credits leading to additions being made in the hands of the assessee towards income of the assessee to the tune of Rs. 1,90,95,000/- u/s 68 of the 1961 Act as unexplained cash credits, while learned CIT(A) after considering additional evidences as well remand report submitted by the AO during the course of first appellate proceedings , concluded that the assessee has duly discharged its onus as is cast u....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ue share certificates and hence the said share application money were treated as unsecured loans unilaterally by the assessee. It is claimed that these two parties continue to treat the said amounts as share application money in their books of accounts. Further , the assessee has claimed that these amounts received by the assessee from various lenders were all interest free as no interest is payable by assessee on these unsecured loans/share application money. The assessee has submitted additional evidences before learned CIT(A) as detailed in preceding para‟s of this order which were admitted by learned CIT(A). The remand report was submitted by the AO during the course of appellate proceedings conducted by learned CIT(A) on these additional evidences filed by assessee before learned CIT(A) which was also considered by learned CIT(A) while granting relief to the assessee. Be that as it may be , it is now admitted position that the assessee has claimed to have submitted all the evidences in its possession in order to make an effort to discharge its burden u/s 68 of the 1961 Act. These evidences either filed before the AO during assessment proceedings or during appellate pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....time barred thereby preventing effective verification and enquiry with respect to these unsecured loans. 6.8 The assessee claimed before learned CIT(A) that it is submitting ledger confirmations along with PAN and addresses before learned CIT(A) with respect to all the eight parties to prove genuineness of the transaction of unsecured loans and claimed that it has submitted all necessary evidences but the learned CIT(A) observed from records that none of the documents were in-fact submitted, which led learned CIT(A) to issue letter dated 02.02.2016, reproduced hereunder: 6.9 The assessee has setup a claim that two of the parties namely Ambition Plaza Private Ltd and Seva Bhawan Private Limited were participating in share capital by way of subscription of share application money but later the said money was converted into interest free unsecured loans as the assessee has claimed that it had insufficient authorised share capital to issue share capital. It is also claimed that it led to dispute between the assessee and investing parties as these Investing parties are reflecting these amounts advanced to assessee as share application money while assessee is unilaterally reflectin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fers no explanation about the nature and source of credit thereof or the explanation offered by the assessee is found not satisfactory in the opinion of the AO, the sum so credited may be treated as income and charged to income-tax as income of the assessee of that previous year. The burden/onus is cast on the assessee and the assessee is required to explain to the satisfaction of the AO cumulatively about the identity and capacity/creditworthiness of the creditors along with the genuineness of the transaction to the satisfaction of the AO. All the constituents are required to be cumulatively satisfied. If one or more of them is absent, then the AO can make the additions u/s 68 of the Act as an income. There are companies which are widely held companies in which public are substantially interested which comes out with an initial public offers wherein shares are listed on stock exchanges and widely traded , wherein members of public make subscriptions in pursuance to the Prospectus issued by the company . Issue of shares in these cases to general public in India as well abroad are approved, regulated and monitored by various authorities who are engaged in regulating and managing sec....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... AO can go to enquire/investigate into truthfulness of the assertion of the assessee regarding the nature and the source of the credit in its books of accounts and in case the AO is not satisfied with the explanation of the assessee with respect to establishing identity and credit worthiness of the creditor and the genuineness of the transactions, the AO is empowered to make additions to the income of the assessee u/s 68 of the Act as an unexplained credit in the hands of the assessee company raising the share capital because the AO is both an investigator and adjudicator. In our considered view, merely submission of the name and address of the creditor, income tax returns, Balance Sheet/statement of affairs of the creditor and bank statement of the creditor is not sufficient as the AO is to be satisfied as to their identity and creditworthiness as well as to the genuineness of the transaction entered into. 6.11 It is undisputed that the aforesaid amount of Rs. 1,90,95,000/- stood credited in the books of accounts of the assessee and now the onus is on the assessee to prove identity and creditworthiness of the creditors to advance these amounts to the assessee and genuineness of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....communication of the assessee with lower authorities. Thus, the balance shown to be payable to Roof N Proof by assessee as at 31.03.2011 is Rs. 11,10,000/- as per confirmation filed and not Rs. 9,00,000/- as is brought to tax by the AO. The assessee has neither filed bank statements of said party nor Balance Sheet/Statement of Affairs of the said party along with copy of ITR for relevant period is also not filed by the assessee. The assessee could not explain as to reasons for the said creditor to have extended interest free unsecured loans . The assessee also did not explained as to when these loans were finally paid off/squared by the assessee. The learned CIT(A) merely accepted confirmation filed by the assessee and did not made any enquiry/verification himself to come to conclusion whether all the ingredients of Section 68 were satisfied cumulatively . Needless to say that powers of ld. CIT(A) are co-terminus with powers of the AO. In our considered view, the assessee has not fully discharged its onus u/s 68 of the 1961 Act completely and cumulatively as to all the three ingredients and in our considered view , this matter need to be restored to the file of the AO for fresh adj....
X X X X Extracts X X X X
X X X X Extracts X X X X
..../explanation filed by the assessee in its defence in set aside proceedings, which shall then be adjudicated on merits in accordance with law. We order accordingly. 6.15 Similarly in case of Mr. Jayesh B. Shah (Mrs. Veenaben Babulal Shah) , it is observed that the assessee has closing balance outstanding of Rs. 3,95,000/- as at 31.03.2011. The assessee has filed confirmation along with PAN and Address of Mr Jayesh B. Shah. It is observed from confirmation filed that there was opening balance as at 01.04.2010 of Rs. 7,45,000/- payable by assessee , while during the year the assessee has paid Rs. 3,50,000/- through banking channel to said party(page 69/pb). Since, as per this confirmation, no amount is received during the year under consideration and in our considered view when no amount is received and found credited during the year under consideration, Section 68 has no applicability as it can be applied when any sum is found credited in the books of accounts of the assessee. If Revenue wants, then it can invoke provisions of Section 68 of the 1961 Act for the year when the said sum was received by assessee and was found credited in its books of accounts of the assessee, if th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or ay: 2011-12. The said company M/s Ambition Plaza Private Limited has total Balance Sheet size of Rs. 2.19 crores. The paid up capital of M/s Ambition Plaza Private Limited is meager Rs. 4.18 lacs while it has huge Reserves and Surplus of Rs. 2.15 crores. The total Investments made by the said company namely M/s Ambition Plaza Private Limited in various entities is Rs. 1.76 crores as at 31.03.2011. It did not have any fixed assets as at 31.03.2011 and 31.03.2010 . The liabilities and provisions are meager Rs. 0.29 lacs as at 31.03.2010. The perusal of Bank Statement of said Ambition Plaza Private Limited will reveal that while payment of Rs. 10 lacs was made by it on 21.10.2010 to assessee , which is preceded with deposit of equivalent amount of Rs. 10 lacs on the same day in its bank account . The balance maintained with the bank account with HDFC bank from where payment was made by said M/s Ambition Plaza Private Limited to assessee was a meager sum of Rs. 26,000/-. The assessee has not submitted any details of shareholder agreements or terms and conditions agreed for allotment/subscription of its shares by said M/s Ambition Plaza Private Limited . The assessee has also not sub....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., copy of Balance Sheet as on 31.03.2011( no P& L, other schedules etc. filed) , copy of acknowledgement of ITR and letter dated 21.03.2014 issued by Seva Bhawan Private Limited in favour of the assessee confirming that this amount of Rs. 20 lacs is given as share application money to assessee(page 58-62/pb). With Respect to M/s Shubh Labh Advertising Private Limited , merely Balance Sheet and Schedules as at 31.03.2011 are filed( No P& L A/c, no Bank Statement, copy of ITR not filed) (pb/page 63-64). The said company has reflected an amount of Rs. 67,00,000/- advanced to assessee as "Advances for value to be received‟ under the head "Loans and Advances‟ in its Balance Sheet as at 31.03.2011. The copy of ITR, Confirmations and bank statements of the lending company are not filed. With Respect to Snowpack Tie-up Private Limited, merely Balance Sheet and Schedules as at 31.03.2011 are filed along with certified ledger account( No P& L A/c, Bank Statement, copy of ITR filed) (pb/page 65-67). The said company has reflected an amount of Rs. 40,00,000/- advanced to assessee as "Advances for value to be received‟ under the head "Loans and Advances‟ in its Balance S....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Now , it is claimed by assessee that these share application moneys are unilaterally treated by assessee as interest unsecured loans in its books of accounts as it has low authorized capital and it cannot issue share capital beyond that limit, while those investing companies continued to reflect the invested amount as share application money in their books of accounts. Nothing prevented assessee to increase its authorized capital after complying with legal requirements as mandated by Companies Act. Thus, this contention of the assessee that confirmation got delayed due to dispute as to conversion of share application money into loans is merely an afterthought. The loans received by the assessee from these companies are stated by assessee to be unsecured and also free of interest which defies all commercial logics and commercial expediencies as to why these unrelated parties shall advanced these amounts as unsecured loans to assessee and that too without any interest. The assessee has filed bank statement in the case of Ambition Plaza Private Limited and Seva Bhawan Private Limited which clearly shows that the money of equivalent amount comes into bank account of these two companies....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d here under:- Sr. No. Name of the party Amount involved (Rs.) 1 M/s. Vatsa Enterprises 37,47,358 2 M/s. Excel Industries 28,16,575 3 M/s. Deep Enterprises 12,62,735 4 M/s. Sambhav Traders 11,34,921 5 M/s. R.K. Traders 14,61,625 6 M/s. Amee Enterprises 29,94,221 7 M/s. Gaddhar Trading Co. 21,41,040 8 M/s. Ashar Impex 29,04,959 9 M/s. Vijami Impex 31,25,469 10 M/s. Linion Tradelink 33,35,152 11 M/s. Banjara Enterprises 37,53,249 12 M/s. A. K. Enterprises 39,21,376 TOTAL 3,25,98,680 7.2. The AO asked assessee to explain genuineness of these purchases. The assessee in response thereof with respect to query raised by the AO , submitted as under:- " We have made the purchase sand metal cement , etc. from Mrs. Vikramsinah J, Solanki having address: 6/1, Durga Villa, Gokhale Road, Vile Parie (E), Mumbai - 57 and contact No.: 8980285985 as per the requirement of material at site for the construction. The order for the said material is normally given on phone to the agents and they supply to us thru the various dealers and normally the dealer....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... care of every payment of taxes till the delivery to our site. 8. Copy of stock register showing receipt of goods by you. Site wise details of stock receipt are enclosed. 9. Details of payments made by you alongwith details of entries showing payment to seller in Bank Statement, etc. If paid in subsequent period, the details thereof. he details of the payments are shown in the copy of Ledger account enclosed of the setter parties and the copy of banks statements are enclosed to cross verify for the payments. 10. Copies of toll payment/Octroi Naka payments if the purchase made from outside, Mumbai. All purchases were made in Mumbai and as explain earlier the duty for any payments related to any taxes till the delivery at our site is of the seller. Hope the above details and explanations will able your honour for justifying our claim of genuine purchase made by us, and further we are enclosing the details of the sales corresponding the purchases alongwith the copies of labour bills. Further to prove our genuine purchase we are enclosing the third party confirmations i.e. of our sales parties and also of the parties from which they....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (vii) As regard to assessee's contention that the rates of material always includes transportation charges and other charges, such as, loading & unloading etc., however, it is seen that in none of the bills, the supplier has charged any additional charges, nor it has been mentioned by the supplier that the rates of material includes all charges and delivery at doorstep of the purchaser party. (viii) As regard to stock receipt submitted, as claimed by the assessee, it is a work completion register maintained by the Municipal Officer/Engineer. The said register does not endorse the delivery of goods/material as stated by the assessee. (ix) As regard to assessee is contention that all the material were purchased from Mumbai, it is to mentioned here that the major building materials such as bricks & sand is not manufactured or excavated in Mumbai. It is always import from outside Mumbai. While coming by road to Mumbai, many toll naka as well as at the entry point of Mumbai & Thane city, octroi naka is always there. The receipt of Octroi as well as Toll can be a valid proof of transportation of goods. If the assessee is not having such proof, it is the responsibili....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... for transportation of waste, waste management, works contracts and sub-contracts. The assessee claimed that it has made genuine purchases to the tune of Rs. 3,25,98,680/- which were mainly used for execution of contracts. The assessee claimed that it has duly furnished copies of bills and ledger confirmations and the payments were made through banking channel. The assessee claimed that the aforesaid twelve parties from whom these purchases were made have not deposited VAT amount with the Sales Tax authorities which was collected from the assessee which led to denial of claim for input tax credit to the assessee . It was submitted that the assessee has forgone the said input tax credit in the Sales Tax assessment. The assessee submitted that it was not aware that the said dealers from whom purchases were made will default in payment of VAT with the Sales Tax authorities. The assessee also submitted before Ld. CIT(A) details of purchases and sales for work contract execution by the assessee and it was submitted that it can be verified that all the aforesaid materials alleged to be bogus purchases by the AO which were purchased by the assessee came directly at the site of Municipal C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) also observed that the assessee has produced transportation bills and consumption of material purchased but has failed to produce these twelve parties before the AO and even the assessee failed to produce these parties before learned CIT(A) despite being asked by Ld. CIT(A) to produce the said parties for verification. The Ld. CIT(A) observed that these suppliers were infact assessee‟s witnesses and the assessee is required to produce these suppliers before the authorities which the assessee had failed to produce. The Ld. CIT(A) considered the ratio of decision of following case laws , as detailed hereunder:- (1) CIT v. Durgaprasad More 82 ITR 540 . (2) Sumati Dayal v.CIT 214 ITR 801 (3) Jamnaprasad Kanhaiyalal v. CIT 130 ITR 244 (SC). (4) Sri Meenakshi Mills Ltd., 63 ITR 609 (SC) (5) McDowell & Co. 154 ITR 148 (SC) (6) CIT vs. Daulat Ram Rawatmull (1973) 87 ITR 349 (7) Chuharmal vs. CIT (1998) 172 ITR 250/ 38 Taxman 190 (8) Dhakeswari Cotton Mills Ltd. Vs. CIT (1954) 26 ITR 775 (9) Nikunj Eximp In ITA no. 5604 of 2010 (Bombay High Court); (10) Balaji Textiles 49 ITD 177 (Bom) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ought to tax vide appellate order dated 08.03.2017 . 9 Aggrieved by the decision of learned CIT(A) granting relief to the assessee by estimating profits embedded in these purchases @12.5% as income of the assessee to be brought to tax vide appellate order dated 08.03.2017 , the revenue has come in an appeal with the tribunal. The Ld. DR submitted that AO has made additions to the tune of 100% of alleged bogus purchases , while Ld. CIT(A) has restricted the same @ 12.5% of the alleged bogus purchases. The Ld. DR submitted that the revenue has filed an appeal as it is aggrieved by appellate order dated 08.03.2017 passed by Ld. CIT(A) and our attention was drawn to ground no. 2 filed by the Revenue. It was submitted that the assessee could not prove genuineness of these purchases and reliance was placed on the decision of Hon‟ble Supreme Court in the case of N.K Proteins Ltd. (Supra) and prayers were made to confirm the addition to the tune of 100% alleged bogus purchases by relying on assessment order framed by the AO. On the other hand, the Ld. Counsel for the assessee prayed that the additions as were confirmed by Ld. CIT(A) be upheld . It was submitted that assessee has n....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... without supplying any material are as under: Sr. No. Name of the party Amount involved (Rs.) 1 M/s. Vatsa Enterprises 37,47,358 2 M/s. Excel Industries 28,16,575 3 M/s. Deep Enterprises 12,62,735 4 M/s. Sambhav Traders 11,34,921 5 M/s. R.K. Traders 14,61,625 6 M/s. Amee Enterprises 29,94,221 7 M/s. Gaddhar Trading Co. 21,41,040 8 M/s. Ashar Impex 29,04,959 9 M/s. Vijami Impex 31,25,469 10 M/s. Linion Tradelink 33,35,152 11 M/s. Banjara Enterprises 37,53,249 12 M/s. A. K. Enterprises 39,21,376 TOTAL 3,25,98,680 The AO made additions to the tune of 100% of aforesaid alleged bogus purchases to the income of the assessee. The AO had observed many discrepancies in the submissions of the assessee , such as that the assessee did not submit confirmations from some of these parties and in some cases the confirmations submitted were not countersigned by these parties. The AO also noted that all the bills/invoices from these twelve parties were prepared in same font and size of alphabets. The said twelve selling parties albeit located at different p....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... It is important to see these evidences as are filed in paper book with respect to these alleged bogus purchases. Perusal of page 74-82/paper book reveals that these are confirmations filed by the assessee with respect to these alleged suppliers. Perusal of page 74/paper book reveals that this is confirmation of Vatsa Enterprises. The assessee has made first purchase on 15.11.2010 from this party in the year under consideration. The total purchases are from 15.11.2010 to 31.01.2011 made by assessee from Vatsa Enterprises aggregating to Rs. 37,47,358/- during financial year 2010-11. The balance outstanding to be payable to this party as at 31.03.2011 by assessee is also Rs. 37,47,358/-. Thus, as could be seen from the confirmation filed by the assessee of this party namely Vatsa Enterprises , the assessee has not made any payment to this party against purchases made during financial year 2010-11. The purchases has also taken place during November 2010 to January 2011. The assessee has stated to have purchased Metal , River Sand and Powder from this party. The invoices are placed in paper book/page 83 to 103. In purchases , Lorry Number is not stated to be complete like "MH 02K 6019&....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng bogus invoices and the assessee is stated to be beneficiary of these alleged bogus purchases. The assessee could not produce these parties before AO as well learned CIT(A) for verification , enquiry and recording of their statement . The notices issued u/s 133(6) by the AO to these parties for verification returned unserved. The proof of transportation and delivery of the material was not filed by the assessee. The consumption/utilisation details of the material is also not filed. In this case, the material under these invoices was intended to be utilised for executing contracts with Municipalities of Greater Mumbai / Thane by assessee as sub-contractor. The onus was very heavy on assessee to prove consumption/utilisation of material, which it could not discharge as no consumption/utilisation details were furnished. There are several inconsistencies noticed by the AO in para 4.3 of assessment order, which also remained un-rebutted by the assessee. Thus, under these facts and circumstances taken cumulatively , we are of the considered view that appellate order passed by learned CIT(A) cannot be upheld/sustained and we set aside the appellate order passed by learned CIT(A) a....