RAJINDERKUMAR K. CHHABRA, MUMBAI v. ACIT 19(3), MUMBAI

ITA 3529/MUM/2011 | 2002-2003
Pronouncement Date: 21-04-2014

Appeal Details

RSA Number 352919914 RSA 2011
Assessee PAN AABPC3377M
Bench Mumbai
Appeal Number ITA 3529/MUM/2011
Duration Of Justice 2 year(s) 11 month(s) 18 day(s)
Appellant RAJINDERKUMAR K. CHHABRA, MUMBAI
Respondent ACIT 19(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 21-04-2014
Appeal Filed By Assessee
Bench Allotted D
Tribunal Order Date 21-04-2014
Date Of Final Hearing 21-04-2014
Next Hearing Date 21-04-2014
Assessment Year 2002-2003
Appeal Filed On 03-05-2011
Judgment Text
D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH MUMBAI BEFORE SHRI D. KARUNAKARA RAO AM AND SHRI VIVEK VARMA JM ./I.T.A. NO.3529/M/2011 (ASSESSMENT YEAR: 2002 - 2003 ) ./I.T.A. NO.3528/M/2011 (ASSESSMENT YEAR: 2007 - 2008 ) MR. RAJINDRA KUMAR K CHHABRA EVERGREEN GROUND FLOOR FLAT NO.5 - A PERRY ROAD BANDRA WEST MUMBAI - 400 050. / VS. ITO - 19(3)(2) R.NO.305 3RD FLOOR PIRAMAL CHAMBERS PAREL MUMBAI. ./ PAN : AABPC 3377 M ( / APPELLANT) .. ( / RESPONDENT ) ./I.T.A. NO.3664/M/2011 (ASSESSMENT YEAR: 2002 - 2003 ) ./I.T.A. NO.3663/M/2011 (ASSESSMENT YEAR: 2007 - 2008 ) ITO - 19(3)(2) R.NO.305 3RD FLOOR PIRAMAL CHAMBERS PAREL MUMBAI. / VS. MR. RAJINDRA KUMAR K CHHABRA EVERGREEN GROUND FLOOR FLAT NO.5 - A PERRY ROAD BANDRA WEST MUMBAI - 400 050. ./ PAN : AABPC 3377 M ( / APPELLANT) .. ( / RESPONDENT ) / ASSESSEE BY : SHRI PRAKASH PANDIT / REVENUE BY : SHRI SANJEEV JAIN DR / DATE OF HEARING : 21.04.2014 / DATE OF PRONOUNCEMENT : 21.04.2014 / O R D E R PER D. KARUNAKARA RAO AM: THERE ARE FOUR APPEALS UNDER CONSIDERATION INVOLVING CROSS APPEALS OF TWO ASSESSMENT YEARS I.E. AY 2002 - 2003 AND 2007 - 2008. SINCE THE ISSUES INVOLVED IN THESE APPEALS ARE CONNECTED THEREFORE FOR THE SAKE OF CONVENIENCE THEY ARE CLUBBED HEARD COMBINEDLY AND DISPOSED OF IN THIS CONSOLIDATED ORDER. APPEAL WISE AND AGROUND WISE ADJUDICATION IS GIVEN IN THE FOLLOWING PARAGRAPHS. 2 2. AT THE OUTSET LD COUNSEL FOR THE ASSESSEE MENTIONED THAT THE AY 2002 - 2003 IS THE CORE ASSESS MENT YEAR AND THE DECISION ON THE GROUNDS APPLY EQUALLY TO THE AYS 2003 - 04 TO 2007 - 08. FURTHER LD COUNSEL MENTIONED THAT THE CIT (A) DELETED ALL THE ADDITIONS MADE IN THE AYS 2003 - 04 TO 2006 - 2007 AND THE DECISION IN THE SAID APPEALS ARE GUIDED BY THE DEC ISION ON THE GROUNDS RELEVANT FOR THE AY 2002 - 2003. THEREFORE THE AY 2002 - 2003 IS CRUCIAL WHICH IS TO BE ADJUDICATED HERE. FURTHER REFERRING TO THE GROUND S RAISED IN THE ASSESSEES APPEAL FOR THE AY 2002 - 2003 LD COUNSEL MEN TIONED THAT GROUND NO.1 & 2 RELATES TO THE VALIDITY OF REOPENING AND THEY ARE NOT PRESSED BEFORE US. ACCORDINGLY THE SAID TWO GROUNDS ARE DISMISSED AS NOT PRESSED. 3. REFERRING TO THE GROUND NOS.3 TO 6 OF SAME APPEAL LD COUNSEL MENTIONED THAT THE ASSESSEE IS A WHOLESALER IN FABRICS AND TEXTILES. HE SUPPLIES / SELLS THE FABRIC TO THE REPUTED CONCERNS NAMELY RAYMON D APPARELS LTD; GIVO LTD; GABBANA FASHIONS PVT LTD AND KACHINS CLOTHINGS LTD. ASESSEE PUR CHASES FABRICS FROM CERTAIN CONCERNS NAMELY M/S. MANOJ MILLS; M/S. SHREE RAM SALES & SYNTHETICS; M/S. ASTHA SILK INDUSTRIES THE PROPRIETORSHIP CONCERN OF SHRI RAKESH KUMAR GUPTA MRS. HEMA R GUPTA AND MR. MOHIT R GUPTA RESPECTIVELY. FURTHER HE MENTIONED THAT THERE WAS A SURVEY ACTION ON SHRI RAKESH KUMAR GUPTA U/S 133A OF THE ACT. DURING THE SURVEY ACTION SHRI RAKESH KUMAR GUPTA GAVE A STATEMENT ON 13.2.2009 AND MENTIONED THAT SHRI GUPTAS PROVIDES ACCOMMODATION ENTRIES AND EARN COMMISSION. MR. RAKESH KUMAR GUPTA GAVE STATEMENT SUBSEQUENTLY ON 23.2.2009 AND 3.3.2009. SUBSEQUENTLY MR. RAKESH KUMAR GUPTA RETRACTED THE STATEMENT AFTER 2 MONTHS. THE SAID RETRACTION WAS HELD TO BE AFTER THOUGHT BY THE REVENUE AUTHORITIES. ACCORDINGLY AO QUANTIFIED THE PURCHASES MADE BY THE ASSESSEE FROM SHRI GUPTAS CONCERNS OF RS. 75 27 210/ - FOR THE AY 2002 - 2003. AO INVOKED THE PROVISIONS OF SECTION 69 AND MADE ADDITION ACCORDINGLY. FOR THE AY 2007 - 2008 WHICH IS ALSO UNDER CONSIDERATION AO QUANTIFIED SUCH PURCHASE S AT RS. 3 36 68 678/ - AND MADE ADDITION U/S 69 FOR THE AY 2007 - 2008. THE MATTER TRAVELLED TO THE FIRST APPELLATE AUTHORITY. 4. DURING THE PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY CIT (A) EXAMINED THE SUBMISSIONS MADE BY THE ASSESSEE. FURTHER HE ALSO EXAMINED VARIOUS 3 DOCUMENTS SUCH AS DELIVERY CHALLANS COPIES OF THE SALES BILLS QUANTITY WISE DETAILS OF THE PRODUCTS OF PURCHASES INVENTORIES. HE ALSO EXAMINED THE COPY OF THE AFFIDAVIT OF SHRI RAKESH KUMAR GUPTA AFFIRMING THE GENUINENESS OF TH E TRANSACTIONS AND RETRACTION OF HIS STATEMENT. HE ALSO DISCUSSED THE FACT THAT THE AO DID NOT COLLECT ANY EVIDENCE TO PROVE THE ENTRIES IN THE ABOVE PAPERS ARE NOT CORRECT BY CONDUCTING ANY INDEPENDENT ENQUIRIES. HE ALSO ENLISTED THE UNDOUBTED FACTS ABOU T THE ABSENCE OF ANY INCRIMINATING MATERIAL IN SUPPORT OF THE RETRACTED STATEMENT OF SHRI RAKESH KUMAR GUPTA. HE ALSO DISCUSSED ABOUT THE FACTS THAT THE SALES WERE ACCEPTED BY THE REVENUE WITHOUT ANY ALTERATIONS. CIT (A) ALSO DISCUSSED THE PROVISIONS OF SECTION 69 AND MENTIONED THAT THERE ARE NO UNACCOUNTED ENTRIES IN THE PRESENT CASE WHICH IS MANDATORY REQUIREMENT FOR INVOKING THE PROVISIONS OF SECTION 69 OF THE ACT. HE CONCLUDED BY SAYING THAT WHEN THE ENTRIES ARE FOUND IN THE BOOKS OF ACCOUNTS PROVIS IONS OF SECTION 69 CANNOT BE INVOKED. HE EXTRACTED THE PROVI SIONS OF THE SAID SECTION WHEREIN IT IS SAID WHEREIN THE FINANCIAL YEAR IMMEDIATELY PRECEDING THE ASSESSMENT YEAR THE ASSESSEEE HAS MADE INVESTMENTS WHICH ARE RECORDED IN THE BOOKS OF ACCOUNT I F ANY MAINTAINED BY HIM FOR THE SOURCE OF INCOME. HE EXPLAINED THAT AS NON - RECORDING IN THE BOOKS OF ACCOUNT IS THE REQUIREMENT WHICH IS NOT THE CASE HERE. FURTHER HE COMMENTED THAT BOOKS OF ACCOUNTS OF THE ASSESEE WERE DULY AUDITED BY THE STATUTOR Y AUDITORS AND IN SUCH CASE PURCHASES SHOWN BY THE ASSESSEE CANNOT BE HELD TO BE BOGUS PURCHASES SO LONG AS THE SALES ARE NOT HELD BOGUS. THEREFORE CIT (A) HELD IN PARA 10 OF HIS ORDER THAT THEREFORE THE ADDITION MADE ON ACCOUNT OF PURCHASES OF RS. 75 27 210/ - CANNOT BE SUSTAINED. HOWEVER THE CIT (A) ANALYSED THE GROSS PROFITS RELATABLE TO THE IMPUGNED PURCHASES FROM SHRI GUPTAS AND FOUND IT (5.2%) IS ON THE HIGHER SIDE VIS - - VIS GP OF 6.5% ON SALES ITEMS OTHER PARTIES. HE INFERRED THAT THAT THE AS SESSEE HAS MADE PURCHASES FROM THE OPEN MARKET AND OBTAINED ACCOMMODATION BILLS FROM THE AFORESAID CONCERNS WHICH RESULTED IN EARNING OF LOWER GP. OF COURSE THERE IS NO EVIDENCE TO SUBSTANTIATE THE STATEMENT. IN THESE CIRCUMSTANCES CIT (A) FOUND IT APP ROPRIATE TO ESTIMATE THE PROFITS AND RESTRICTED THE ADDITION TO THE DIFFERENCE IN GP. HE ALSO RELIED ON THE DECISION OF THE ITAT AHMEDABAD BENCH IN THE CASE OF ITO VS. SUNSTEEL [2005] 92 TTJ (AHD) 1126 DATED 17.6.2004. IN THE SAID CASE (SUPRA) THE FACT S ARE THAT THE ASSESSEEE FAILED TO PROVE THE EXISTENCE OF CERTAIN SUPPLIERS FROM WHOM THE 4 PURCHASES WERE MADE. ON THESE FACTS THE TRIBUNAL CONFIRMED THE ADDITION TO THE EXTENT OF RS. 50 000/ - OUT OF THE DISPUTED PURCHASES OF RS. 27 LAKHS (ROUNDED OF). O N THE SAME ANALOGY THE CIT (A) ESTIMATED THE ADDITION OF RS. 5 LAKHS IN THE AY 2002 - 2003 TO COVER UP THE DIFFERENCE IN PURCHASES FROM THE CONCERNS OF GUPTAS AND OTHERS. CIT (A) RESTRICTED THE ADDITION TO RS. 15 LAKHS FOR THE AY 2007 - 2008. AGGRIEVED WITH THE DELETION OF ADDITION U/S 69 OF THE ACT REVENUE IS IN APPEAL IN BOTH THE YEARS. ON THE CONTRARY AGGRIEVED WITH THE SUSTENANCE OF ADDITION OF RS. 5 LAKHS FOR AY 2002 - 2003 AND RS. 15 LAKHS FOR AY 2007 - 2008 ASSESSEE FILED THE PRESENT APPEALS BEFORE TH E TRIBUNAL. ALL THE GROUNDS OF THE REVENUE AND THE ASSESSEE REVOLVES AROUND THE ABOVE DECISION OF THE CIT (A). 5. DURING THE PROCEEDINGS BEFORE US SHRI PRAKASH PANDIT OPENED THE ARGUMENT AND NARRATED THE ABOVE FACTS WITH THE HELP OF THE ORDERS OF THE R EVENUE AUTHORITIES. LD COUNSEL ALSO BROUGHT OUR ATTENTION TO THE VOLUMINOUS PAPER BOOKS ON FACTS AS WELL AS THE COMPENDIUM OF DECISIONS IN SUPPORT OF THE ASSESSEE. TO START WITH LD COUNSEL BROUGHT OUR ATTENTION TO THE PROVISIONS OF SECTION 69 OF THE ACT AND MENTIONED THAT THE SAID PROVISIONS CANNOT BE INVOKED WHEN THE ENTRIES ARE DULY RECORDED IN THE BOOKS OF ACCOUNTS IF ANY MAINTAINED BY THE ASSESSEE. IT IS DEMONSTRATED THAT NONE OF THE ADDITIONS ARE MADE OUTSIDE THE ENTRIES IN THE BOOKS OF ENTRIES. FURTHER LD COUNSEL MENTIONED THAT SHRI GUPTAS ARE GENUINE CONCERN S AND THESE CONCERNS ARE ENGAGED IN THE GENUINE BUSINESS OF SUPPLYING OF THE FABRICS TO MANY CONCERNS SUCH AS M/S. NEW MEENA BAZAR INTERNATIONAL P. LTD HYDERABAD; M/S. JITENDERA HARSHADKUMA R TEXTILES P LTD MUMBAI APART FROM THE ASSESSEE UNDER CONSIDERATION. FURTHER HE MENTIONED THAT SIMILAR ADDITIONS WERE MADE BY THE AO IN HYDERABAD IN THE CASE OF ITO VS. M/S. NEW MEENA BAZAR INTERNATIONAL P. LTD HYDERABAD AND THE SAID ADDITION WAS THE SUBJECT MATTER OF THE HYDERABAD BENCH OF ITAT VIDE ITA NO.888/HYD/2012 FOR THE AY 2007 - 2008. THE SAME WAS ADJUDICATED B Y THE TRIBUNAL VIDE ORDER DATED 11.1.2013 A COPY OF WHICH IS FILED BEFORE US. IT IS THE FINDING OF THE TRIBUNAL THAT THE IMPUGNED CONCERNS BELONGING TO GUPTAS ARE GENUINE CONCERNS AND IN THE ABSENCE OF ANY CONTRARY MATERIAL THE ADDITIONS WERE HELD TO BE NOT SUSTAINABLE IN THAT CASE. PARA 5 OF THE SAID ORDER OF THE TRIBUNAL WAS FOUND TO BE RELEVANT HERE AND THE SAME IS REPRODUCED AT APPROPRIATE PLACE OF THIS 5 ORDER. FURTHER BRINGING OUR ATTENTION TO VARIOUS DOCUMENTS FURNISHED BY THE ASSESSEE BEFORE THE LOWER AUTHORITIES LD COUNSEL MENTIONED THAT THE PURCHASES WERE GENUINE AND THE DOCUMENTS OF PURCHASE BILLS DELIVERY CHALLANS AND BANKING DETAILS WERE ACCEPTED BY THE AO WITHOUT ANY CRITICISM ON THEM. AS SUCH AO HAS NOT BROUGHT ANY MATERIAL WHATSOEVER TO DEMONSTRATE THAT THE SAID CONCERNS AND THE TRANSACTIONS WITH THEM ARE BOGUS. THE AO MERELY RELIED ON THE RETRACTED STATEMENT INVALIDLY. 6. ON THE OTHER HAND LD DR FILED A COPY OF ANOTHER ORDER OF THE TRIBUNAL IN THE CASE OF M/S. JITENDRA HARSHAD KUM AR TEXTILES P LTD BOMBAY WHICH IS ANOTHER CONCERN THAT PURCHASED MATERIAL FABRIC OR TEXTILE FROM THE CONCERNS BELONGING TO GUPTAS. THE LD DR RELIED ON THE SUBMISSIONS MADE BEFORE THE TRIBUNAL IN THE SAID CASE. HE MENTIONED THAT THE TRIBUNAL WHILE DELE TING THE ADDITIONS UPHELD THE GENUINENESS OF THE CONCERNS. REFERRING TO PARA 9 OF THE SAID ORDER OF THE TRIBUNAL DATED 17.10.2013 LD DR MENTIONED THAT FOR WANT OF EXAMINATION OF CERTAIN RECORDS IN THAT CASE THE MATTERS WERE REMANDED. ACCORDINGLY LD D R MENTIONED THAT THE ISSUES RAISED IN THE APPEALS SHOULD ALSO BE REMANDED. IN REPLY TO THE SAME LD COUNSEL MENTIONED STATING THAT THERE IS NO NEED FOR REMANDING THE MATTER IN THE PRESENT CASE. FOR THIS PURPOSE LD COUNSEL BROUGHT OUR ATTENTION TO PARA 9 OF THE ORDER OF THE TRIBUNAL IN THE CASE OF M/S. JITENDRA HARSHAD KUMAR TEXTILES P LTD (SUPRA) AND READ OUT THAT 9. AS WE HAVE ALREADY OBSERVED THAT HE ADDITION CANNOT BE MADE SOLELY ON THE BASIS OF THE STATEMENT OF THE THIRD PARTY BUT SINCE THE RELEVANT RECORD AS RELIED UPON BY THE ASSESSEE BEFORE US HAS NOT BEEN EXAMINED AND PARTICULARLY THE ALLEGED BILLS THROUGH WHICH ASSESSEE HAS CLAIMED TO HAVE PURCHASED THE MATERIAL.. DISTINGUISHING THE FACTS TO THE PRESENT CASE LD COUNSEL BROUGHT OUR ATTENTI ON TO THE PAPER BOOK FROM PAGE 44 WHICH CONSTITUTES DETAILS OF SALES PURCHASES STOCK DISPOSAL STATEMENT (ITEM WISE AND PARTY WISE) SALES RECONCILIATION CONFIRMATION FROM RAYMOND APPAREL LTD. ADITYA BIRLA PANTALOON LETTER TO AO AFFIDAVIT FROM THE SAID PARTIES PURCHASE BILLS ALONG WITH DELIVERY CHALLANS SALES BILLS RECONCILED QUANTITATIVE STOCK STATEMENT AND BANK STATEMENT SHOWING CHEQUE PAYMENTS AND MENTIONED THAT ALL THE RELEVANT RECORDS WERE MADE AVAILABLE TO THE AO THAT IS NECESSARY FOR INDUC TING INVESTIGATION INTO THE IMPUGNED 6 PURCHASES FROM THE CONCERNS OF SHRI GUPTAS AND THERE IS NO ADVERSE FINDING ON THE CONCERNED ENTRIES. IN SUCH CASE THERE IS NO REQUIREMENT FOR REMANDING THE MATTER IN THIS CASE. FURTHER LD COUNSEL FOR THE ASSESSEE BRO UGHT OUR ATTENTION TO THE SAID ORDER OF THE TRIBUNAL IN THE CASE OF M/S. JITENDRA HARSHAD KUMAR TEXTILES P LTD (SUPRA) AND MENTIONED THAT THE CONCERNS OF SHRI GUPTAS ARE GENUINE AND THE STATEMENT OF THIRD PARTY IS NOT A BASIS FOR MAKING SUCH HUGE ADDITIONS WHILE ACCEPTING THE SALES MADE BY THE ASSESSEE. LD COUNSEL CONCLUDED BY SAYING THAT THE ADDITION MADE U/S 69 SHOULD BE ENTIRELY DELETED. FURTHER COMMENTING ON THE ESTIMATED ADDITION OF RS. 5 LAKHS FOR THE AY 2002 - 2003 AND RS. 15 LAKHS FOR THE AY 2007 - 2 008 LD COUNSEL MENTIONED THAT SUCH ADDITIONS ARE NOT SUSTAINABLE WHILE BOOKS OF ACCOUNTS ARE BEING ACCEPTED. THE BOOKS OF ACCOUNTS DO NOT SUFFER FROM ANY INACCURACIES AND INCOMPLETENESS. THEREFORE THE BEST JUDGMENT ADDITIONS ARE NOT BE ENTERTAINED. REF ERRING TO THE SAID JUDGMENT OF THE TRIBUNAL IN THE CASE OF M/S. JITENDRA HARSHAD KUMAR TEXTILES P LTD (SUPRA) LD COUNSEL MENTIONED THAT THE SAID JUDGMENT WAS DELIVERED ON THE FACTUAL MATRIX OF NON - AVAILABILITY OR NON - EXISTENCE OF THE SUPPLIERS. IN THE PR ESENT CASE SHRI GUPTAS IS VERY MUCH AVAILABLE TO THE REVENUE AND STATEMENTS WERE RECORDED FROM HIM AND THE CONCERNS ARE VERY MUCH IN EXISTENCE. IN SUCH FACTUAL MATRIX THE SUPPLIERS CANNOT BE CONSIDERED AS NON - EXISTENCE. THEREFORE THE CIT (A) DECISION O F RESTRICTING THE ADDITION BASED ON THE ESTIMATIONS SHOULD NOT BE CONFIRMED. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE VOLUMINOUS PAPER BOOKS CONTAINING ESSENTIAL RECORDS ON ONE SIDE AND COMP ENDIUM O F DECISIONS ON THE OTHER. WE HAVE ALSO PERUSED THE ORDERS OF THE COORDINATE BENCH OF ITAT MUMBAI IN THE CASE OF M/S. JITENDRA HARSHAD KUMAR TEXTILES P LTD (SUPRA) AND THE DECISION OF THE ITAT HYDERABAD BENCH IN THE CASE OF M/S. NEW MEENA BAZAR INTERNATI ONAL P LTD (SUPRA). IN IS AN UNDISPUTED FACT THAT THE STATEMENT RECORDED FROM MR. RAKESH KUMAR GUPTA AND HIS FAMILY MEMBERS IS THE SOLE BASIS FOR MAKING ADDITIONS IN THE CASES OF SHRI RAKESH KUMAR GUPTA MRS. HEMA R GUPTA AND MR. MOHIT R GUPTA WHICH ARE ALREADY ADJUDICATED BY THE TRIBUNAL. IT IS A CONSISTENT VIEW OF THE TRIBUNAL THAT IN THE ABSENCE OF ANY OTHER CORROBORATING EVIDENCE THE STATEMENTS ALONE CANNOT BE BASIS 7 FOR MAKING ADDITIONS AND SUCH ADDITIONS ARE NOT SUSTAINABLE. THIS THE CASE OF THIRD PARTY GIVING THE STATEMENT WHICH HAS THE IMPLICATIONS ON THE ASSESSEE. IN SUCH CASE THERE IS A NEED FOR INCRIMINATING MATERIAL FOR MAKING A SUSTAINABLE ADDITION. FURTHER WE FIND THAT THE CONCERNS BELONGING TO MR. RAKESH KUMAR GUPTA AND FAMILY ARE GENU INE. PARA 5 OF THE ORDER OF THE TRIBUNAL IN THE CASE OF M/S. NEW MEENA BAZAR INTERNATIONAL P LTD (SUPRA) IS RELEVANT HERE AND THE SAME READS AS UNDER: 5. WE HAVE HEARD THE LD DEPARTMENTAL REPRESENTATIVE AND LD COUNSEL FOR THE ASSESSEE. WE DO NOT SEE ANY REASON TO INTERFERE WITH THE ORDER OF THE CIT (A). FIRST OF ALL THERE IS NO DENIAL OF THE EXISTENCE OF THE ABOVE THREE PARTIES AS THE A S SES SING O FFICER CONDUCTED SURVEY AND RECORDED STATEMENTS. THEREFORE THE PARTIES CANNOT BE CONSIDERED TO BE BOGUS. WITH REFERENCE TO NON - RESPONSE BY THEM AS RIGHTLY POINTED OUT BY THE CIT (A) THERE COULD BE MANY REASONS FOR NOT RESPONDING. HOWEVER ASSESSEE A S NOTED ABOVE HAS PROVIDED ALL THE VOUCHERS TRANSPORTATION BILLS INVOICES ALONG WITH DETAILS OF PAYMENTS MADE BY WAY OF CHEQUES WHICH ARE NOT DISPUTED. FURTHER ASSESSEE IS ALSO ABLE TO ESTABLISH THAT THE GOODS RECEIVED WERE IN FACT SOLD AND THE SALES WERE DISTURBED. IN VIEW OF THIS WE DO NOT SEE ANY REASON DISTURB THE FINDINGS OF THE CIT (A) AS THE REVENUE HAS NOT BEEN ABLE TO ESTABLISH THAT THE SALES ARE INDEED BOGUS AND THOSE PARTIES HAVE GIVEN ACCOMMODATION BILLS IN THE CASE OF THE ASSESSEE. IN THE ABSENCE OF ANY EVIDENCE ON RECORD TO DISTURB THE FINDINGS OF THE CIT (A) WE UPHOLD THE ORDER OF THE CIT (A) AND DISMISS THE APPEAL OF THE REVENUE. 8. FURTHER WE HAVE ALREADY EXTRACTED THE CONTENT OF PARA 9 IN THE CASE OF M/S. JITENDRA HARSHAD KUMAR TEXTILES P LTD (SUPRA) WHEREIN IT WAS HELD THAT THE STATEMENT OF THIRD PARTY I.E. SHRI RAKESH KUMAR GUPTA CANNOT BE THE SOLE BASIS FOR MAKING ADDITIONS. FURTHER WE HAVE ALSO EXAMINED THE PROVISIONS OF SECTION 69 AND FIND THAT THE SAID PROVISIONS CANN OT BE PRESSED INTO SERVICE ONLY WHERE ENTRIES ARE NOT RECORD ED IN THE BOOKS OF ACCOUNTS IF ANY. APPROPRIATE WORDS OF THE SAID PROVISIONS OF SECTION 69 HAVE ALREADY MENTIONED ABOVE. IT IS ALSO EVIDENT THAT THE CIT (A) HAS RELIED ON THE DECISION OF AHMEDA BAD BENCH OF ITAT IN THE CASE OF SUNSTEEL (SUPRA) WHEREIN THE NON - AVAILABILITY OF THE SUPPLIERS IS THE REASON GIVEN FOR SUSTAINING THE ADDITIONS TO THE EXTENT OF RS. 50 000/ - OUT OF RS. 27 LAKHS (ROUNDED OF). WHEREAS IN THE PRESENT CASE SHRI RAKESH KUM AR GUPTA IS VERY MUCH AVAILABLE TO THE REVENUE AUTHORITIES THEREFORE THE SAID DECISION CANNOT HELP THE REVENUE. CONSIDERING THE ABOVE DECISIONS OF THE TRIBUNAL WHICH ARE DELIVERED BY VARIOUS BENCHES OF THE ITAT WE FIND THAT THE REASONS FOR SUSTAINING THE ADDITIONS MADE BY THE AO U/S 69 ARE NOT SUSTAINABLE. FURTHER TO CLARIFY THE AD - HOC ADDITIONS CONFIRMED BY THE CIT (A) ARE ALSO NOT SUSTAINABLE SINCE THE AO DID NOT REJECT ANY BOOKS OF ACCOUNT IN THE PRESENT CASE. AS CLARIFIED EARLIER THE DECISION I N THIS CASE OF 8 SUNSTEEL (SUPRA) IS DISTINGUISHABLE ON FACTS. THEREFORE THE GROUNDS RAISED BY THE ASSESSEE ALSO ALLOWED AND THE REVENUE ARE DISMISSED FOR BOTH THE ASSESSMENT YEARS 2002 - 03 AND 2007 - 08. 9. IN THE RESULT BOTH THE APPEALS OF THE ASSESSEE (FO R THE AY 2002 - 03 AND 2007 - 08) ARE ALLOWED AND BOTH THE APPEALS OF THE REVENUE (FOR THE AY 2002 - 03 AND 2007 - 08) ARE DISMISSED . ORDER PRONOUNCE D IN THE OPEN COURT ON 2 1 S T APRIL 2014. S D / - S D / - (VIVEK VARMA) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 2 1 .4.2014 . . ./ OKK SR. P S / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. / DR ITAT MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER / (DY./ASSTT. REGISTRAR) / ITAT MUMBAI