Income Tax Appellate Tribunal - Ahmedabad
Abhishek Ispat Pvt.Ltd.,, Surat vs Department Of Income Tax on 30 May, 2008
IN THE INCOME TAX APPELLATE TRIBUNAL,
AHMEDABAD "D" BENCH,
BEFORE SHRI BHAVNESH SAINI, J.M. AND SHRI A. N. PAHUJA, A.M.
ITA No.2709/AHD/2008
A. Y.: 2005-06
The Income Tax Officer, Vs M/s. Abhishek Ispat Pvt.
Wad 1(1), Ltd., Plot No.5713,
Surat Road No.57,
GIDC, Sachin,
Surat
PA No. AABCA 9858 J
(Appellant) (Respondent)
For Appellant by: Shri Sandip Garg, DR
For Respondent by: Shri Rasesh B. Shah, AR
ORDER
PER BHAVNESH SAINI: This appeal by revenue is directed against the order of the learned CIT (A) -I, Surat dated 30-05-2008 for assessment year 2005-06 on the following grounds:
"1. On the facts and in the circumstances of the case and in law, the learned CIT (A)-I, Surat has erred in allowing the appeal on the ground that Shri Amratbhai P. Prajapati has negated his statement.
2. On the facts and in the circumstances of the case and in law, the learned CIT (A)-I, Surat has erred in deleting the addition of Rs.76,14,067/- made by the Assessing Officer u/s. 69 C of the Act, on account of unexplained expenses".ITA No.2709/Ahd/2008 2
ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
2. We have heard the learned representatives of both the parties, perused the findings of the authorities below and considered the material available on record.
3. The facts of the case are that the A O in the assessment order stated that assessee has filed its return of income at Nil on 31-10-2005 which was processed u/s 143(1) of the IT Act. Thereafter, as information was received from DDIT (Inv.), Baroda/ADIT (Inv)-III, Surat that the assessee had purchased goods worth Rs.56,22,347/- and Rs.19,91,720/- from Bhagyodaya Enterprises, Baroda and Bhavna Trading Co., Baroda respectively. The report stated that both these firms were proprietary concerns of Shri Amratbhai Prajapati a resident of Baroda. The report stated that this person was examined u/s131 (1A) of the IT Act in connection with verification of BCTT, cash withdrawal from HDFC Bank. According to the report, it was found that Shri Prajapati had issued bogus sale bills to various concerns including the assessee company. It was stated in the report that two firms have simply issued sale bills to the assessee company and, therefore, the assessment for current year was opened u/s 147 of the IT Act by issuing a notice u/s 148 of the IT Act on 28.11.2006. The assessee company stated that the return filed u/s 139 of the IT Act may be considered as return filed in response to notice u/s 148 of the IT Act.
3.1 The A O has stated that the assessee company is engaged in the business of trading and cutting of H. R. Coils and non- alloyed sheets of different sizes. In the current year, the assessee has shown a turnover of Rs.23.06 crores and gross profit rate of 2.05% in comparison with a turnover of Rs.15.69 crores and gross ITA No.2709/Ahd/2008 3 ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
profit rate of 2.54% in the last year. The A O has stated that as per report received from DDIT (Inv), Baroda Shri Prajapati had categorically stated that no actual business transactions were made by his proprietary concerns with the assessee company. The cheque issued against the sale bill had been deposited in his bank account maintained with HDFC Bank, Baroda. Later on, he issued bearer cheques to the sale party itself to withdraw the sale consideration. He kept meager amount as his dalali and bearer cheque for the balance amount was issued. According to the A O, this modus operandi discussed by Shri Prajapati has been found to be correct during the course of inquiries carried out u/s 133 (6) of the IT Act with HDFC Bank. The A O has prepared a table on page no. 4 and 5 of the assessment order showing date of purchases and date of payments in respect of purchases made from Bhagyodaya Enterprises and Bhavna Trading Co. The purchases were from made from June, 2004 till August, 2004 from Bhagyodaya Enterprises and payment was made to this firm from September, 2004 to December, 2004. The total purchases made was of Rs.55,22,347/- and the total payment made was also Rs.56,22,347/-. In respect of Bhavna Trading Co., total purchases of Rs.19,91,720/- was made from June, 2004 till July, 2004 and total payment of Rs.14,41,650/- was made in September, 2004 and balance payment of Rs.5,50,00/- was made on 31st March,
205. 3.2 The A O further stated that since Mr. Prajapati had stated that only sale bills were given by Bhagyodaya Enterprises and Bhavna Trading Co., Baroda, he asked the assessee to produce both parties personally for further verification along with their ITA No.2709/Ahd/2008 4 ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
books of accounts if the assessee company was still of the opinion that the transactions claimed in the name of these parties were genuine. The A O further stated in Para 8 of the assessment order that the learned Counsel for the assessee company was specifically conveyed that he got confirmation letter in the name of Bhagyodaya Enterprises, Baroda and Bhavna Trading Co., Baroda which contradicted the earlier statement, accordingly, produce the proprietor of both concerns personally to ascertain correct state of affairs vide order sheet entry dated 27-02-2007. However, no effort in this regard was made by the assessee company. The A O has further stated that the inquiries from the banks further revealed that the payment of Rs.14,41,650/- made by the assessee company to Bhavna Trading Co. by way of cheque was deposited in the bank of Bhavna Trading Co. but cash was withdrawn through even bearer cheques issued by Bhavna Trading Co. The copies of all seven cheques were sent by ABN Amro Bank to the A O. In the same fashion, the sale bill amount was withdrawn in cash through various bearer cheques issued by Shri Prajapati being proprietor of Bhavna Trading Co. In view of this reason, the A O has stated in Para 9 of the assessment order that these facts established that the cheques issued against purchases were received back in cash within short time. This fact was also brought to the notice of the assessee company during the course of assessment proceedings. In view of this reason, the A O issued show cause letter on this issue vide letter dated 05-09-2007 and 15-09-2007 and requested the assessee to prove genuineness of the purchases claimed to have been made from these two firms. According to the A O, the assessee company made no effort to prove its case. The A O has stated that therefore, a final show cause notice was issued to the ITA No.2709/Ahd/2008 5 ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
assessee company on 21-01-2007. In this notice, the A O pointed out that it has been found that the cheques issued by the assessee were cleared in the respective concerned account and later on the cash was withdrawn through bearer cheques. According to the A O, these inquiries established that the assessee had claimed bogus purchases in the name of both these concerns aggregating to Rs.76,14,067/-. The A O asked the assessee as to why this amount is not to be added to the total income of the assessee company.
3.3 In response to the above show cause notice, the assessee filed its written submission dated 17-12-2007 and objected to the addition. The A O has reproduced the relevant part of the reply in Para 10 from page 8 to 13 of the assessment order. The gist of the reply given by the assessee to the A O is as under:
"i) The assessee in the business of trading of steel. The goods are purchased from different parties arranged by a group of established brokers. A major chunk of purchases are made through these brokers only. This is a widely prevalent practice in the market. The brokers usually stands guarantee for supply of material and payments.
ii) Goods have been purchased from Bhagyodaya Enterprises and Bhavna Trading Co. at multiple points of time. The assessee has already filed confirmations of the parties along with PAN and, therefore, identities of the party have been established. Copies of the bank shows that the payment was made by the account payee cheques and therefore, the genuineness of transaction has also been established. A contract account confirmations received from the party have also been filed during the assessment proceedings.ITA No.2709/Ahd/2008 6
ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
iii) It is pertinent to note that the verification carried out by the A O from Shri Prajapati by way of calling for information u/s 133 (6) has also yielded the same results and reinforced the bonafide and genuineness of the transactions under examination. The admitted and undisputed fact of the payments being made and the same being credited in the sellers (both the parties) bank accounts also established the genuineness of transactions.
iv) The A O has not supplied copy of the statement of Shri Prajapati sated to have been recorded on oath because of which the assessment has been reopened and, therefore, the context of the statement and the purpose of recording of the statement are not informed to the assessee. The assessee further stated before the A O that along with Shri Prajapati had denied the transaction of sale by his firms of the assessee company during the examination by DDIT (Inv), Baroda but later on he himself has admitted that transactions in response to notice u/s 133 (6) issued by A O and, therefore, the statement cannot be taken cognizance of. The assessee stated that on these facts, the statement recorded and not confronted cannot be relied upon.
v) The assessee further stated before the A O that it is a undisputed and acknowledged fact, as mentioned in the show cause notice dated 21.11.2007, that the payments made for the purchase transactions have been credited in the regular bank accounts of these seller concerned unlike third unrelated bank accounts which would be the scenario in case of a suspicious purchase transactions. The fact that the payments have been accepted and deposited in its own account of the seller established the genuineness of transactions thus the onus upon the assessee of proving the genuineness of transactions has been adequately discharged. What treatment was meted out by the seller in respect of the sale proceed cannot lead to an adverse inference because the assessee cannot be called in to account for and explain the affair of a third party not in its control.
vi) The assessee further stated that the same set of books of accounts and supporting evidence were also produced before the ADIT (Inv), Surat. No defects in the books of ITA No.2709/Ahd/2008 7 ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
accounts and the supporting evidences could be identified by the ADIT (Inv), Surat. The assessee had informed the ADIT (Inv) that the transaction was arranged through a broker Shri Pavan Bokadia who was their regular broker.
vii) The assessee further stated before the A O they have given the quantitative details from time to time and perusal of the same clearly established that the said goods have been sold by the assessee and tax on the profit on a same is also promptly offered for tax as per the return of income under consideration. The assessee stated that in a hypothetical situation of the purchases not being made than there cannot be corresponding sales The assessee invited the A O's attention to the decision of Hon'ble Punjab and Haryana High Court in the case of CIT Vs Leaders Valves (P) Ltd. 285 ITR 435 wherein on identical set of facts the Hon'ble Court held that there was "no basis for treating the purchases made by the assessee from seven scrap dealers as bogus as the consumption stood fully proved and the existence of the said party could not be denied - Tribunal has concurred with the conclusion of the CIT (A) in view of the fact that the trading results of the assessee have been accepted or alone ...... It has also accepted the contention of the assessee that if the A O's conclusion is accepted and purchases worth Rs.1.49 crores are treated as bogus it would be impossible to manufacture the goods shown to have been manufactured by it". The assessee stated that in the current case also the quantitative tally submitted before the A O clearly shows that the sales have taken place. The sales have been full proved by the supporting documents and evidences. The existence of the parties also cannot be denied in view of the evidences submitted on record. In fact, the department itself has received the confirmation of the transactions and the relevant ledger account of the concerned party during verification U/s 133 (6a). In view of the quantitative tally no manipulation is possible as the assessee is engaged in trading activity only and the quantitative tally of the stock is fully verifiable from the books of accounts submitted before the A O and the ADIT (Inv) , Surat.
3.4 In view of the above, the assessee stated before the A O that the proposed addition of the genuine purchases from Bhagyodaya ITA No.2709/Ahd/2008 8 ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
Enterprises and Bhavna Trading Co. treating them as bogus purchases is unjustified. This proposed addition is also against the rules of natural justice as the statement on the basis of which the addition is proposed has never been made available to the assessee so that he assessee should consider availing of opportunity to examine the person if needed and ascertain the basis of the addition. A statement of someone in respect of which cross examination opportunity is not given and without any corroborative evidence, when the department itself has received confirmation and contra account from the same party, can in no way be a substantial evidence and basis to treat the genuine purchases as bogus.
4. The A O did not accept the above explanation of the assessee for the following reasons:
i) The argument that the assessee has discharged its onus of proving the purchases would be acceptable in moderate situation but not in the available circumstances because purchases made from both the concerns same run by the same person Shri Prajapati who, during his cross examination by the Investigation Wing of Baroda, clarified his modus-operandi and admitted that he had issued accommodating bills to various parties including the assessee company. He further stated that the account payee cheques received against the accommodating bills have been deposited in his bank accounts and in turn he had issued bearer cheques to the party who took accommodating bills after deducting his commission of a very small amount.
The entire modus-operandi as discussed by Shri Prajapati has been proved correct in later enquiries carried out by his office. The cash has been found to be withdrawn from the bank accounts of the two firms. This was not merely a plain statement of Shri Prajapati but it was correct state of affairs because Shri Prajapati ITA No.2709/Ahd/2008 9 ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
did not have adequate facility of godown and also did not have genuine purchases to support his sales. Under these circumstances the purchases shown by the assessee could not have been made from the two firms of Shri Prajapati even though the identity, PAN and confirmations are available on records because these facts do not prove the genuineness of transaction more so because the seller himself clarified his stand.
ii) The argument that the purchases have been made through one broker Shri Pavan Bokadia is not relevant because it is internal affair of the assessee and also because the assessee company has not produced Shri Pavan Bokadia with relevant details till date. This argument is nothing but to dilute the issue and shift the responsibility towards others and hence this argument is not acceptable.
iii) As regards the argument of not providing copy of statement of Shri Prajapati, the A. O. stated that the entire proceedings are known the assessee since the assessment proceedings were initiated due to the examination of Shri Prajapati by the investigation wing and the director of the assessee company was himself examined by the investigating wing on this issue. The A. O. stated that a copy of the statement of Shri Prajapati was shown to Shri Atulbhai Mehta, one of the directors of the company, while asking the question no.6 of his statement recorded on 3-11-2006.
According to the A. O. the ADIT Investigation of Surat asked how the assessee company had made the purchases from Bhagyodaya Enterprises and Bhavna Trading Company when the Proprietor of these firms has denied the said transaction and has clarified that he has not actually sold the goods but simply issued sales bills. At this time the statement of Shri Prajapati was shown to the director of the company and therefore at this stage the assessee can not argue that the statement of Shri Prajapati has not been provided. In view of this reason the A. O. rejected this argument also.
ITA No.2709/Ahd/2008 10ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
iv) As regards the argument that the reply u/s 133 (6) has been received by the department, the A. O. stated that this shows that the assessee company is still in touch with Shri Prajapati. According to the A. O. when the assessee company is able to make effort to manage the reply of the Notice u/s 133 (6), the assessee should have been able to produce Shri Prajapati personally for further verification and to find out the truth. The A. O. has stated that he had repeatedly requested the assessee to produce Shri Prajapati for verification specially because a confirmation/reply was received from the side of Shri Prajapati which goes against the statement given by him before the investigation wing Baroda. According to the A. O. the notice u/s 133(6) was not initially complied by Shri Prajapati but the assessee company itself filed confirmation at his own and therefore, the A. O. again issued notice u/s 133(6) to confirm the genuineness of the confirmation letter. The A. O. has stated in Para 15 that his office received reply from Shri Prajapati side and in view of this contradiction another letter was issued to Shri Prajapati to clarify whether the statement given by him before the investigation wing Baroda was correct or the letter received on behalf of him in response to notice u/s 133 (6) is correct. According to the A. O. there was no response to this letter. The A. O. stated under these circumstances, it was for the assessee to resolve the contradiction and this could have been done by producing Shri Prajapati personally for the verification purposes specially because the assessee was in touch with Shri Prajapati. In view of this reason the A. O. rejected this argument also.
v) As regards the reliance the decision of Punjab and Haryana High Court in thecae of Leaders Valves (supra), the A. O. sated that the facts of this case are different from the facts of the assessee's case.
4.1 In view of the above reasons the A. O. rejected all the arguments of the assessee company and stated that the assessee company has merely obtained bills from Shri Prajapati and ITA No.2709/Ahd/2008 11 ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
squared the transaction by issuing the account payee cheques and by withdrawing the cash through the bearer cheques as explained by Shri Prjapati. The A. O. therefore stated that since the sales have been made, the assessee company must have purchased materials so that corresponding sales could be materialized. The A. O. therefore, held that the assessee company purchased required materials out of its undisclosed sources of income. The purchases claimed in the name of M/s. Bhagyodaya Enterprises and the M/s. Bhavna Trading Company are found non genuine as claimed on particular date. The A. O. stated that as far as payments are concerned it has no weightage as they wire made for squaring off the non genuine purchase. The A. O. further stated that there is no possibility of rotation of unaccounted funds because the assessee company had claimed purchase from Bhagyodaya Enterprises from 10-06-2004 to 09-08-2004 aggregating to R.56,22,347/- and from Bhavna Trading from 02-06-2004 to 25-07-2004 of Rs.19,91,720/- but the payments to Bhavna Trading started from 21-09-2004. According to the A. O. this means the possibility of rotation of unaccounted fund is not available to the assessee and hence there is no benefit on account of arriving at peak of unaccounted fund. In view of this the A. O. concluded that the entire purchased have been made from undisclosed source of income and therefore, according to him these expenses can be considered as unexplained expenses u/s 69C of the IT Act. The A. O., therefore, added the entire purchases of Rs.76,14,067/- as unexplained purchased expenses u/s 69 C of the IT Act.
ITA No.2709/Ahd/2008 12ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
5. Before the learned CIT (A) the assessee reiterated the above submissions. The assessee however stated that the copy of the statement of Shri Prajapati was not provided and also cross examination opportunity was not provided. Therefore, the case was sent for remand report to the A O directing him to provide to the assessee a copy of the statement which was relied upon by him and also to give opportunity to the assessee to cross examine Shri Prajapati, Proprietor of Bhagyodaya Enterprises and Bhavna Trading Company. Copies of the submissions of the assessee were also sent to the A O for submitting his remand report and that the remand report of the A. O. was forwarded by the Addl. CIT, Range-1. In the remand report the A. O. stated as under: -
"As directed, this office has provided copy of statement of Shri Amratbhai Poonambhai Prajapati recorded before DDIT (Inv)-1, Baroda as well as ADIT (Inv)-3, Surat to the assessee company on 21.03.2008. Further, efforts have been made to provide cross examination of Shri Amratbhai Poonambhai Prajapati to the assessee. Shri Prajapati was provided two opportunities to remain present in this office on 31.03.2008 at 5.00 pm and on 07.04.2008 at 5.00 pm respectively. However, no response either in any manner was received by this office. Therefore, cross examination could not be provided till date. Here it is humbly submitted that whenever this office issued letters to Shri Amratbhai Poonambhai Prajapati either u/s 133(6)/131(1), no response were received during the course of assessment proceedings except reply dated 24.09.2007 in response to one letter issued u/s 133 (6) dated 24.08.2007, the said reply was considered non-genuine and another letter u/s 133(6) was issued to Shri Prajapati for verification of correctness of reply dated 24.09.2007, no response was received".ITA No.2709/Ahd/2008 13
ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
5.1 It was further submitted that in this report, the A. O. further stated that the statement of Shri Prajapati was not the sole basis of assessment. He stated that:-
"The office has made inquiries from Prajapati's bank and found that cash was withdrawn just after the credit received through assessee's as well as other customer's cheques. Since it was already clear that Shri Prajapati issued accommodating entries, the cash was withdrawn to remit back for settling the entries.
In addition to the above, the assessee has failed to prove the genuineness of transactions claim with Shri Prajapati by putting surrounding evidences such as loading unloading charges, transportation charges, weighing slips, octroi, delivery challans, gate passes, goods arrival and dispatch reports etc. The A. O. stated that in view of these reasons the addition u/s 69 C was made and it was held that the assessee company must have arranged goods out of its undisclosed source of income".
5.2 It was further submitted that copy of this report was given to the assessee for comments and the assessee has submitted its comments on 29-05-2008. Apart from these comments the assessee has given its submission on 17-03-2008 and 18-03-2008. The gist of the submissions made by the assessee is almost same as it was given to the A. O. and which have been discussed in Para 2.4.1. to 2.4.2 of the impugned order. The fresh arguments taken by the assessee before the learned CIT (A) during the appellate stage are that even after the remand report, the A. O. has failed to give to the assessee opportunity of cross examining Shri Prajapati and therefore, as per the settled position of law the statement given by Shri Prajapati cannot be considered as an evidence against the assessee. In support of the aforesaid contention, the assessee relied upon the following decisions:
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i) CIT Vs SMC Share Brokers Ltd. - 288 ITR 345
ii) CIT Vs Arjundas Surinder Kumar & Co. - 239 ITR 859
iii) JVT (India) Exports - 262 ITR 269
iv) Rajesh Mehta Vs ITO 100 TTJ (ASR) 453
v) ITO Vs Bajrang Oil Industries 12 ITD (NAG) 631
In view of these reasons, the assessee has stated that the statement of Shri Prajapati cannot be treated as an evidence, because it was already negated when in response to notice u/s 133(6) issued by the A. O., Shri Prajapati had sent the confirmation of accounts and that the assessee has not been given cross examination of Shri Prajapati. It was further submitted that the A.O. has brought no material on record to prove the allegation made against him that the cash withdrawn from the bank account of the two firms of Shri Prajapati was returned back to the assessee company and that even in the remand report the A. O. has stated in Para 4 of the report that the assessee company must have arranged goods out of its undisclosed source of income. This clearly shows that the A. O. does not have any proof and he has only come to this conclusion based on conjecture and surmises. The assessee maintained complete day to day quantitative record of party wise purchase and sales both in terms of quantity and amount. The purchases made from these two firms have been included in the record and complete tally of sock has been provided to the A. O. It was because of that reason that the A. O. has been forced to state that since sales have been made by the assessee, the corresponding purchases must have been made. The A. O. has brought no material on record to show that purchases were indeed made out of the books from some other ITA No.2709/Ahd/2008 15 ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
party and that cash was indeed returned by the firms of Shri Prajapati. In view of these reasons the assessee has stated that the allegation of the A. O. that the purchases must have been made from some other parties and cash payment must have been made out of unexplained sources was without any basis and contrary to the actual facts on record. The assessee has further stated that the goods were not chargeable to central excise and hence there was not question of gate pass. Octroi was not applicable to the assessee as the godown of the assessee was outside the octroi check post. The burden of delivery as per the business principle was that the price was inclusive of transportation charges and it also included loading and unloading charges. Therefore, proof of transportation was kept by the suppliers. It was also stated that the goods receive in the godown of the assessee had been properly recorded in the books of accounts which was clearly reflected in the day to day stock tally and that since the goods were not subject to excise duty and because the transportation between dealer to dealer, there was no incidence of sales tax and octroi duty, therefore there was no benefit to the assessee by taking bill from one party and goods from another party. The gross profit rate during the current year was also 2.05% on turnover of Rs.23.16 cores showing a gross profit of R.47.49 lacs as compared to the gross profit rate of 2.54% on turnover of Rs.15.69 cores showing gross profit of Rs.39.88 lacs. This shows that in absolute terms the gross profit shown during the year was much higher. The marginal decrease in gross profit rate was due to increase in turnover by almost 50% over the last year. This shows that the books of accounts were correct and there was no reason for the assessee to take accommodation bills.ITA No.2709/Ahd/2008 16
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The assessee has further stated that the A O has drawn a presumption that the amount has come back in the hands of the assessee without there being any evidence and merely on the basis of cash withdrawn y Shri Prajapati from the accounts of his firms and that on mere presumption the addition could not be sustained in view of the decision of the Hon'ble Gujarat High Court in the case of Adinath Industries 252 ITR 476 wherein the Hon'ble High Court has observed that "It is very much surprising that in the instant case the Assessing Officer has drawn a presumption that the amount has come back in the assessee's hands, without any evidence whatsoever merely on the basis of withdrawal of amounts from the account of Geeta Industries" and that the facts of the assessee are exactly the same. The A O has obtained copies of cheques from the banks as stated by him at page 6 and 7 in Para 8 and 9 of the assessment order. The A O has stated all the 7 cheques were bearer but still he was silent as to who has withdrawn the cash as evidenced from the back side of these cheques and still he has made allegation without even bringing this material on record that the cash has flown back to the assessee. In view of these reasons, the assessee stated that the addition could not be sustained in view of the decision of the Hon'ble Gujarat High Court in the case of Adinath Industries (supra).
6. Considering the submissions of the assessee and the materials available on record the learned CIT (A) deleted the entire additions. His findings in the impugned order in Para 4.1 to 4.5 are reproduced as under:
"4.1 I have considered the submissions made by the appellant and observations of the A. O. The main reason and ITA No.2709/Ahd/2008 17 ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
argument of the A. O. for making the addition of Rs.76,14,067/- as unexplained purchases expenses u/s 69 C is that the purchases made from both the concerns are run by the same person Shri Prajapati who, during his cross examination, in connection with transactions covered by BCTT, by the Investigation wing of Baroda, clarified his modus-operandi and admitted that he had issued accommodating bills to various parties including the assessee company. He further stated that the account payee cheques received against the accommodating bills have been deposited in his bank accounts and in turn he had issued bearer cheques to the party who took accommodating bills after deducting his commission of a very small amount. The entire modus-operandi as discussed by Shri Prajapati has been proved correct in later enquiries carried out by his office. The cash has been found to be withdrawn from the bank accounts of the two firms. This was not merely a plain statement of Shri Prajapati but it was correct state of affairs because Shri Prajapati did not have adequate facility of godown and also did not have genuine purchases to support his sales. Under these circumstances the purchases shown by the assessee could not have been made from the two firms of Shri Prajapati even though the identity, PAN and confirmations are available on records because these facts do not prove the genuineness of transaction more so because the seller himself has clarified his stand. According to the A. O. when the assessee company is able to make effort to manage the reply of the notice u/s 133(6), the assessee should have been ale to produce Shri Prajapati for further verification and to find out the truth. The A. O. has stated that he had repeatedly requested the assessee to produce Shri Prajapati for verification specially because a confirmation/reply was received from the side of Shri Prajapati which goes against the statement given by him before the investigation wing, Baroda. According to the A. O. the notice u/s 133(6) was not initially complied by Shri Prajapati but the assessee company itself filed confirmation at his own and therefore, the A. O. again issued notice u/s 133(6) to confirm the genuineness of the confirmation letter. The A. O. has stated in Para 15 that his office received reply from Shri Prajapati side and in view of this contradiction another letter was issued to Shri Prajapati to clarify whether the statement given by him before the investigation wing, ITA No.2709/Ahd/2008 18 ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
Baroda was correct or the letter received on behalf of him in response to notice u/s 133(6) is correct. According to the A. O. there was no response to this letter. The A. O. stated under these circumstances, it was for the assessee to resolve the contradiction and this could have been done by producing Shri Prajapati personally for the verification purpose specially because the assessee was in touch with Shri Prajapati. In view of this reason the A. O. rejected this argument also.
4.2 I do not agree with the A. O. The facts and legal position does not support the contention of the A. O. The statement of Shri Prajapati cannot be treated as an evidence because it has already been negated when in response to notice u/s 133 (6) issued by the A. O., Shri Prajapati had sent the confirmation of accounts. It is pertinent to note that the verification carried out by the A O by way of calling for information U/s 133 (6) from Shri Prajapati (as admitted by the A. O. in the assessment order on page 16 in Para 15) has also yielded the same results and reinforced the bonafide and genuineness of the transactions under examination. The admitted and undisputed fact of the payments being made and the same being credited in the sellers (both the parties) bank accounts also established the genuineness of transactions. Further, the appellant has not been given cross examination of Shri Prajapati. Even after the remand report, the A. O. has failed to give to the appellant opportunity of cross examining Shri Prajapati and therefore as per the settled position of law the statement given by Shri Prajapati can not be considered as an evidence against the appellant in view of the following decisions:
a) CIT Vs SMC Share brokers Limited (288 ITR
345) wherein the Hon'ble Delhi High Court stated There is no doubt that the statement of Manoj Agrawal had evidentiary value but weight could not be given to it in proceedings against the assessee without it being tested under cross-examination. In the absence of the statement being tested, it cannot be said that it should be believed completely to the prejudice of the assessee.ITA No.2709/Ahd/2008 19
ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
b) CIT Vs Arjundas Surinder Kumar & Co. (239 ITR 859) wherein the Punjab & Haryana High Court has stated dismissing the application for reference, that the statements recorded in the summary proceedings during search could not be used without confronting the assessee-firm with those statements. The Tribunal was justified in setting aside the cancellation of registration of the firm based on such statements. No question of law arose from its order.
c) J. T. (India) Exports (262 ITR 269) wherein the Hon'ble Delhi High Court stated that The principles of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted consideration which are usually associated with a formulated law involving linguistic technicalities and grammatical nineties. It is the substance of justice which has to determine its form. Even if grant of an opportunity is not specifically provided for it has to be read into unoccupied interstices and unless specifically excluded the principles of natural justice have to be applied. Even if a statute is silent and there are no positive words in the Act or th Rules spelling out the need to hear the party whose rights and interests are likely to be affected, the requirement to follow fair procedure before taking a decision must be read into the stature, unless the statute provides otherwise.
d) Rajesh Mehta Vs Income Tax Officer (2006) 100 TTJ (ASR) 453 wherein the Hon'ble ITAT Amritsar stated that addition can not be upheld even on merits where statements relied upon by the A. O. were never confronted to the assessee nor he was allowed to cross examine the deponents.
e) ITO Vs Bajrang Oil Industries (1985) 12 ITD (NAG) 631 where in the Hon'ble ITAT Nagpur stated that additions were made representing certain credits ITA No.2709/Ahd/2008 20 ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
and bogus purchases depending upon the purchase register in which the receipts were noted. However, the same was not available at the time of cross examination of witness. Local enquiries were made at the back of the assessee. On these facts the ITAT held the assessment as null and void to the extent of these additions.
In view of these reasons, it is clear that the statement of Shri Prajapati cannot be treated as an evidence:
* because it was already negated when in response to notice u/s 133(6) issued by the A. O., Shri Prajapati had sent the confirmation of accounts' * because the appellant has not been given cross examination of Shri Prajapati.
4.3 It is clear from the above discussion that the A. O. has brought no material on record to prove the allegation made him that the cash withdrawn from the bank account of the two firms of Shri Prajapati was returned back to the appellant company. Even in the remand report the appellant has stated in para 4 of the report "The assessee company must have arranged goods out of its undisclosed source of income." This clearly shows the A. O. does not have any proof and he has only come to this conclusion based on conjecture and surmises. The appellant maintains a complete day today quantitative record of Party wise purchase and sales both in terms of quantity and amount.
The purchases made from these two firms have been included in this record and a complete tally of stock has been provided to the A.O. It is because of this reason that the A. O. has been forced to say that since sales have been made by the appellant, the corresponding purchases must have been made. The A. O. has brought no material on record to show that purchases were indeed made out of the books from some other party and that cash was indeed returned by the firms of Shri Prajapati. In view of these reasons, the A.O. has drawn a presumption that the amount has come back in the hands of the assessee without there being any evidence and merely on the basis of cash withdrawn by Shri Prajapati from the accounts of his firms.
ITA No.2709/Ahd/2008 21ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
Further, the addition on mere presumption can not be sustained in view of the decision of Gujarat High Court in the case of Adinath Industries (supra). The facts of the appellant are exactly the same. The A. O. has obtained the copies of cheques from the banks as stated by him on page 6 & 7 in para 8 & 9 of the assessment order. In para 9 on page 7 the A. O. has stated "The copy of all 7 cheques were sent by ABN Amro Bank vide its letter dated 11-9-2007". The A. O. has stated that all these 7 cheques were bearer but still he is silent as to who has withdrawn the cash as evidenced from the back side of these cheques and still he has made allegation without even bringing this material on record that the cash has flown back to appellant. In view of the reasons the addition cannot be sustained in view of the decision of Gujarat High Court in the case of Adinath Industries (supra) also.
4.3.1 It is clear that the A. O. failed to give cross examination even after he was given one more opportunity to do so. In the Remand report of the A. O. he submitted vide letter No.SRT/Wd/-1(1)/Rem.report/AIPL/2008-09 dated 11-4-2008, the A. O. stated as under:
"As directed this office has provided copy of statement of Shri Amratbhai Poonambhai Prajapati recorded by DIT(Inv)-I, Baroda as well as ADIT(Inv)-3, Surat to the assessee company on 21.03.2008, further, efforts have been made to provide cross examination of Shri Amratbhai Poonambhai Prajapati to the assessee. Shri Prajapati was provided two opportunities to remain present in this office on 31.03.2008 at 5.00 PM and on 07-04-2008 at 5.00 PM respectively, however, no response either in any manner was received by this office. Therefore, cross examination could not be provided till date. Here it is humbly submitted that whenever this office issued letters to Shri Amratbhai Poonambhai Prajapati either u/s 133 (6)/131(1), no response were received during the course of assessment proceedings except reply dated 24.09.2007 in response to one letter issued u/s 133(6) dated 24.08.2007, this said reply was considered non genuine and another letter u/s 133(6) was issued to Shri Prajapati for verification of ITA No.2709/Ahd/2008 22 ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
correctness of reply dated 24.09.2007, no response was received".
4.3.2 In this report, the A. O. further stated that the statement of Shri Prajapati was not the sole basis of assessment. He stated that:-
"The office has made inquiries from Prajapati's bank and found that cash was withdrawn just after the credit received through assessee's as well as other customer's cheques. Since it was already clear that Shri Prajapati issued accommodating entries, the cash was withdrawn to remit back for settling the entries.
In addition to the above, the assessee has failed to prove the genuineness of the transactions claimed with Shri Prajapati by putting surrounding evidences such as loading, unloading charges, transportation charges, weighing slips, octroi, delivery challans, gate passes, goods arrival and dispatch reports etc. The A. O. stated that in view of these reasons the addition u/s 69 C was made and it was held that the assessee company must have arranged goods out of its undisclosed source of income".
4.3.3 From the above it is clear that the A. O. has no material but he is making the statement without any basis. Neither during the stage of investigation, nor during the assessment proceedings and nor during the remand proceedings, the A O has been able to provide cross examination of the statement made by Shri Prajapati. In view of the above discussion and case laws, the statement made by Shri Prajapati has no evidentiary value. In fact, this statement stood negated when the A O who should have made further inquiries if any. Instead of making any inquiries, he was constantly asking the assessee to produce Shri Prajapati when he himself could not enforced statutory provisions of section 2131. Hence, the addition made on the basis of the statement cannot be sustained in the eyes of law.
4.4 It is further seen that in this case these goods are not chargeable to central Excise and hence there is no question ITA No.2709/Ahd/2008 23 ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
of Gate pass. Octroi is not applicable to the case of the assessee as the godown of the assessee is outside the octroi check post. The burden of delivery as per the business principle is that the price is inclusive of transportation charges and it also includes loading and unloading charges. Therefore, the proof of transportation is kept by the supplier. As stated above the goods received in our godown have been properly recorded in the books of accounts which is already reflected in the day to day sock tally. Since these goods are not subject to Excise Duty and because the transaction between dealer to dealer there was no incidence of sales Tax and as stated above there was no incidence of octroi duty, therefore thee was no benefit to the assessee by taking bill from one party and goods from another party. The G. P. rate also during the current year is 2.05% on a turnover of Rs.23.46 crores showing a gross profit of R.47.49 lacs as compared to the G. P. rate of 2.54% on a turnover of Rs.15.69 crores showing a gross profit of Rs.39.88 Lacs. This shows that in absolute terms the gross profit shown during the year is much higher. The marginal decrease in G. P. rate is due to increase in turnover by almost 50% over the last year. Therefore, there seen to be no reason for the appellant to take accommodation bills. Goods have been purchased from Bhagyodaya Enterprises and Bhavna Trading Co. at multiple points of time. The assessee has already filed confirmations of the parties along with PAN and, therefore, identities of the party have been established. Copies of the bank show that the payment was made by the account payee cheques and therefore, the genuineness of transactions has also been established. A contra account confirmations received from the party have also been filed during the assessment proceedings. The assessee had given the quantitative details from time to time and perusal of the same clearly establishes that the said goods have been sold by the assessee and tax on the profit on a same is also promptly offered for tax as per the return of income under consideration. Further, in view of the decision of Hon'ble Punjab and Haryana High Court in the case of CIT Vs Leaders Valves (P) Ltd. 285 ITR 435, no addition can be made because on identical set of facts the Hon'ble Court held that " there was no basis for treating the purchases made by the assessee from seven scrap dealers as bogus as the consumption stood fully proved and the existence of ITA No.2709/Ahd/2008 24 ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
the said party could not be denied - Tribunal has concurred with the conclusion of the CIT (A). In view of the facts that the trading results of the assessee have been accepted or alone. It has also accepted the contention of the assessee that if the A O's conclusion is accepted and purchases worth Rs.1.49 crores are treated as bogus it would be impossible to manufacture the goods shown to have been manufactured by it". In the assessee's case also the quantitative tally submitted before the A O clearly shows that the sales have taken place. The sales have been fully proved by the supporting documents and evidences. The existence of the parties also cannot be denied in view of the evidences submitted on record. In fact, the Department itself has received the confirmation of the transactions and the relevant ledger account of the concerned party during the verification U/s 133 (6). In view of the quantitative tally no manipulation is possible as the assessee is engaged in trading activity only and the quantitative tally of the stock is fully verifiable from the books of accounts submitted before the A O and the ADIT(Inv.) , Surat.
4.5 From the above discussion, it is clear that the statement of Shri Prajapati has not only been negated by Shri Prajapati himself but the same has not been subjected to cross examination and therefore the same cannot be considered as of any evidentiary value. Further, the A O has brought no material on record to show that the cash withdrawn by Shri Prajapati from his firms passed on to the appellant company. As per the facts and position of law discussed above, the addition made by the A O cannot be sustained. Hence the addition is deleted and the grounds of appeal are allowed.
In the result, the appeal is allowed".
7. The revenue is in appeal on the above grounds of appeal challenging the deletion of the addition. Learned D R relied upon order of the A O and submitted that credit should be given to the statement of A. P. Prajapati recorded by the ADIT. The assessee should have produced the above party before the A O for ITA No.2709/Ahd/2008 25 ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
examination. The learned D R submitted that Shri Prajapati withdrew the cash from his account and disbursed the same would show that transaction of sale and purchase was not genuine. Learned D R relied upon findings of the A O recorded by learned CIT (A) at page 9 and 10 of the impugned order.
8. On the other hand, learned Counsel for the assessee reiterated the submissions made before the authorities below. He has referred to letter dated 27-11-2006 written by ADIT (Inv.), Unit
-III, Surat to the Additional Commissioner of Income Tax, Range-I, Surat in which it was noted that verification was made relating to the transactions of BCTT only and no investigation was carried with regard to the assessee. He has also submitted that in the said letter also it is stated that statement of Shri Atulkumar Mehta, director of the assessee company was recorded in which he has explained that these purchases were made through Pravinbhai Bokadia and purchase are genuine. He has submitted that original return of income was filed on 30-10-2005 in which all the purchases were disclosed to the revenue department and source is also explained but the statement of Shri Prajapati was recorded later on, on 08-09-2006. Since purchases were recorded in the books of accounts of the assessee prior to investigation and source is explained therefore, section 69 C of the IT Act would not apply in this case. He has referred to Para 7 to 9 of the assessment order where the A O recorded that all payments are made through cheques. He has submitted that assessee was not allowed cross examination to the statement of Shri Prajapati, therefore, such statement cannot be read in evidence against the assessee. He relied upon decision of Hon'ble Supreme Court in ITA No.2709/Ahd/2008 26 ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
the case of Kishandchand Chellaram 125 ITR 713. Shri Prajapati filed confirmation before A O as well as confirmed the transactions in his reply before A O to the notice u/s 133 (6) of the IT Act. Learned Counsel for the assessee further submitted that there is no evidence on record that the assessee or any person connected with the assessee have encashed the bearer cheques issued by Shri Prajapati. He has relied upon decision of Gujarat High Court in the case of CIT Vs M. K. Brothers 163 ITR 249. He has referred to Para 17 of the assessment order where A O has accepted materials purchased by the assessee, other wise it would have become impossible for the assessee to make the sales. Learned Counsel for the assessee submitted that profit and turnover of the assessee are better as compared to earlier years. He has submitted that both the seller parties as above are assessed to commercial tax and that their registration numbers were filed before the authorities below (PB - 15 and 16). Learned Counsel for the assessee, therefore, submitted that the additions have been rightly deleted by the learned CIT (A).
9. We have considered rival submissions and material available on record. The A O disputed the purchases made by the assessee from the two concerns of Shri A. P. Prajapati namely M/s. Bhagyodaya Enterprises and M/s. Bhavna Trading Co. The seller Shri Prajapati filed the confirmations of selling the goods to the assessee. Copy of the accounts confirmed by Shri Prajapati are also filed. Copies of the same are filed in the paper book. Both of his concerns are registered with Gujarat Commercial Tax Department and copies of their TIN number are also filed in the paper book. The A O issued notice u/s 133 (6) of the IT Act in ITA No.2709/Ahd/2008 27 ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
which also Shri Prajapati in his reply to the A O confirmed the transactions made with the assessee company. The assessee also filed PAN number of Shri Prajapati. Thus, the assessee proved the identity of the seller from whom the assessee made the purchases. The A O however, noted that since there was a contradiction in the confirmation and reply filed u/s 133 (6) of the IT Act as compared with the statement recorded by the ADIT, therefore, further letter was issued u/s 133 (6) of the IT Act. In such an event, it was necessary for the A O to have recorded further statement of Shri Prajapati in order to find out the truth of the matter recorded in his statement by ADIT. The A O however, did not take any step in the matter and drew the adverse inference against the assessee for not replying the notice u/s 133 (6) of the IT Act issued on second occasion despite the fact that even copy of statement of Shri Prajapati recorded by ADIT was not supplied to the assessee. The learned CIT (A), therefore, rightly noted that A O should have afforded right of cross examination to the assessee to verify the statement of Shri Prajapati at the assessment stage. In the absence of the same, the learned CIT (A) at the appellate stage directed the A O to send the remand report on the matter and directed the A O to provide copy of the statement of Shri Prajapati recorded by ADIT to the assessee and shall also give an opportunity to the assessee to cross examine Shri Prajapati, proprietor of both the concerns from whom assessee purchased the goods. The A O in his remand report admitted before learned CIT (A) that efforts have been made to provide cross examination of Shri Prajapati to the assessee, but Shri Prajapati did not attend the proceedings, therefore, cross examination could not be provided to the assessee. It would, therefore, prove that not only at ITA No.2709/Ahd/2008 28 ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
the assessment stage but at the appellate stage also assessee was denied opportunity to cross examine Shri Prajapati by the A O. Shri Prajapati was examined by the ADIT and his statement was referred to the ADIT, Range- I, Surat and the Assessing Officer for taking action in the matter. The case of the assessee was also reopened u/s 147 of the IT Act due to the above reason. Shri Prajapati is, therefore, witness of the revenue department to depose against the assessee, but the A O did not afford any opportunity to the assessee to cross examine him in order to find out the truth in his statement. Since, no cross examination to the statement of Shri Prajapati is allowed to the assessee, therefore, his statement recorded at the back of the assessee cannot be read in evidence against the assessee. We rely upon decision of Hon'ble Supreme Court in the case of Kishanchand Chellaram 125 ITR 713 in which it was held that evidence collected at the back of the assessee to be confronted to the assessee to give him opportunity to rebut it, other wise, same would not be admissible in evidence against the assessee. Hon'ble Delhi High Court in the case of SMC Share Brokers Ltd. 288 ITR 345 held that A O did not allow cross examination of the person searched. Illegal. Cannot be relied upon. Principles of Natural Justice not followed. Departmental appeal was dismissed. Mere reference to the statement of Shri Prajapati in the statement of the assessee would not be enough to deny right of cross examination to his statement. On the other hand, Shri Prajapati confirmed transactions with assessee and also confirmed the transactions in his reply to the query raised u/s 133 (6) of the IT Act. It is also admitted fact that the assessee made payments of purchases through cheques and the same fact has been recorded by the A O in the assessment ITA No.2709/Ahd/2008 29 ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
order. No evidence has been brought on record by the A O that the assessee or any other person connected with the assessee withdrew any amount from the bank of the seller to benefit the assessee. Hon'ble Gujarat High Court in the case of CIT Vs M. K. Brothers (supra) held as under:
"During the accounting year relating to assessment year 1971-72, the assessee had made purchases of the total value of Rs.52,254 from certain parties. The Income tax Officer required the assessee to produce evidence regarding the purchases. In the meantime, the said parties had admitted to the sales tax authorities that they had issued bogus vouchers. The Income tax Officer held that the purchases were not genuine and assessed the amount of Rs.52,254 as income of the assessee from undisclosed sources. The Tribunal found that there was no evidence to show that bogus vouchers had been issued to the assessee, that nothing had been shown to indicate that very part of the funds given by the assessee to these parties came back to the assessee in any form, and that the assessee had made its payments by cheque. The Tribunal deleted the addition. On a reference:
Held, that the conclusion arrived at by the Tribunal was supported by the evidence on record. The amount of Rs.52,254 was not assessable as income from undisclosed sources and the Tribunal was justified in deleting the addition".
The A O in Para 17 of the assessment order noted that assessee must have purchased materials so that corresponding sales could be materialized and held that assessee company purchased required materials out of its undisclosed source of income. It would, therefore, show that purchases consumed by the assessee have not been disputed. No manufacturing and further sales by the assessee have been disputed. Thus, the A O accepted quantitative tally of sales and purchases made by the assessee.
ITA No.2709/Ahd/2008 30ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
The A O however, forgot to note that the assessee explained that purchases were made on payment through banking channel. Therefore, source of the purchases have been explained which have also not been disputed by the A O. According to section 69 C of the IT Act where in any financial year an assessee has incurred any expenditure and he offers no explanation about the source of such expenditure or part thereof or the explanation if any offered by him in the opinion of the A O, satisfactory, the amount covered by such expenditure or part thereof as the case may be deemed to be the income of the assessee for such financial year. In this case, the assessee explained satisfactorily the source of the purchases which had not been doubted and all the purchases are recorded in the books of account and shown to the revenue department prior to recording of the statement of Shri Prajapati, therefore, burden is very heavy upon A O to prove that assessee made bogus purchases for which no source is explained. However, no evidence or material is brought on record to support the findings of the A O. It is also admitted fact that the turn over and profit shown by the assessee as compared with preceding assessment year are higher. Therefore, there is no need for the assessee to inflate the expenditure. The assessee also explained that purchases are made through the broker and his statement was not found to be false. The goods purchased are not subjected to excise and according to the explanation of the assessee the transportation charges are included in the value of the goods, therefore, no adverse inference could be drawn against the assessee. The findings of the A O thus would not prove any case against the assessee for making the addition. The provisions of section 69 C of the IT Act would not apply in the case of the assessee. The ITA No.2709/Ahd/2008 31 ITO, W-1(1), Surat Vs Abhishek Ispat Pvt. Ltd.
above materials discussed by the A O in the assessment order were not sufficient to sustain the addition against the assessee. There is no other incriminating material or evidence found against the assessee. Considering the totality of the facts and circumstances noted above, we do not find it to be a fit case to interfere with the findings of the learned CIT (A) to delete the entire addition. We confirm the findings of the learned CIT (A) and dismiss the appeal of the revenue.
10. In the result, the appeal of the revenue is dismissed.
Order pronounced in the open Court on 30-09-2010.
Sd/- Sd/-
(A. N. PAHUJA) (BHAVNESH SAINI)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Date : 30/09/2010
Lakshmikant/-
Copy of the order forwarded to:
1. The Appellant
2. The Respondent
3. The CIT concerned
4. The CIT(A) concerned
5. The DR, ITAT,
6. Guard File
BY ORDER
ूित //True Copy//
DY.R/AR, ITAT, AHMEDABAD