P. C. — This Appeal under Section 260A of the Income Tax Act, 1961 (the Act), challenges the order dated 22nd February, 2013 passed by the Income Tax Appellate Tribunal (the Tribunal) for the Assessment Year 2003-04.
2. The Revenue urges the following question of law for our consideration: -
"Whether on the facts and in the circumstance of the case and in law, the Tribunal was perverse in coming to the conclusion that the purchases made from the four parties were genuine, when both the AO and the CIT(A) had come to the conclusion otherwise?"
3. The Respondent-Assesee is engaged in the business of manufacturing/ trading and export of Stainless Steel cutlery. In the original Assessment Order dated 27th March, 2006 passed under Section 143(3) of the Act, the Assessing Office disallowed the purchase to the tune of ' 82.84 lakhs on the ground that the Respondent-Assessee had failed to produce the parties and the Inspector deputed could not locate the parties. On further appeal, the CIT(A) while upholding the order of the Assessing Officer did not accept the additional evidence sought to be filed by the Respondent-Assessee.
4. On further appeal, the Tribunal by its order dated 19th May, 2008 set aside the order of the lower authorities and restored the entire issue to the Assessing Officer. This remand was with a direction to consider and verify the additional evidence which was produced before the Tribunal and decide the genuineness of the purchases.
5. The Assessing Officer by his order dated 24th November, 2009 passed on remand by the Tribunal upheld the disallowance of purchase of ' 82.84 lakhs merely on the basis that the Respondent-Assessee had complied with the hearing notice. This without having examined the evidence led by the Respondent-Assessee to prove the genuineness of the purchases. In the result, the purchase from all the four parties of ' 82.84 lakhs were again held to be bogus. Thus, the Assessee's total income was assessed at ' 42.43 lakhs.
6. On further appeal, the CIT(A) by its order dated 28th April, 2010 partly allowed the Respondent-Assessee's appeal. This after taking into consideration the evidences produced by the Respondent-Assessee in support of its contention, which had been ignored by the Assessing Officer. The Respondent-Assessee's appeal was allowed to the extent of 75% of the disputed purchases, inter alia holding that there can be no sales in absence of purchase.
7. Being aggrieved, both the Revenue as well as Respondent-Assessee filed appeals to the Tribunal. The impugned order of the Tribunal holds that the evidence led by the Respondent-Assesssee was not examined by the Assessing Officer. This evidence was not examined by the Assessing Officer on the ground that the Respondent-Assessee did not comply with his notices. This finding of not complying with the notices, the impugned order holds was found to be incorrect by the CIT(A). The Revenue in its appeal before the Tribunal has not challenged the above finding of the CIT(A). Therefore, there was no reason for the Assessing Officer not to have examined the evidence led by the Respondent-Assesssee. Further, on consideration of the record, the Tribunal held that the payments had been made to all the four parties through banking channels i.e. account payee cheque. The copy of the bank statement showing a clearance of the account payee cheques were already produced. The impugned order further observes as under:-
"The other evidences like sales tax registration certificate and confirmation of accounts by the said parties also prima facie proves the identity of the purchaser. The assessee has also produced copies of purchase invoices and also the entire quantitative details with regard to the purchase and corresponding exports made by the assessee. In this case, the Assessing Officer has duly accepted the sales/ export turnover and also the gross profit rate. This, inter alia means that the assessee must have made purchases during the year under consideration for which there is corresponding sales. Once the gross profit which is the balancing figure of the opening stock, purchases and direct cost on the debit side and sales and closing stock on the credit side, has been accepted by the Assessing Officer, then it would be farfetched to perceive that such a huge quantity of purchases have not been made. Further, these evidences with regard to the purchases were there with the Assessing Officer in the second round of proceedings, he could have at least made some efforts to verify as to whether these purchases have actually been routed through banking channel i.e. were made through account payee cheques or not or whether the sales tax certificates in the name of these four parties are genuine or not, even though the assessee had failed to put up any appearance before him. The primary onus which laid upon the assessee was discharged. It was upon the Assessing Officer to prove that these documents are not genuine. Once these documents have not been adversely commented, it cannot be held that the entire purchases with these parties are bogus....."
In the above view, the Tribunal allowed the Respondent-Assessee's appeal while dismissing the Revenue's appeal. It held that the entire purchases aggregating to ' 82.84 lakhs from the four parties were genuine and allowed as expenditure.
8. We find that Tribunal in the impugned order has considered various evidences in the form of Sales Tax Registration Certificate and the PAN number of the parties, copies of the purchase invoices, quantitative utilization of its purchases corresponding to the export made out of these purchases produced before the Assessing Officer. The Assessing Officer in his order of assessment has not examined any of these evidences but has merely proceeded on the basis that in spite of notice as issued, the Respondent had not complied with the same. This has been negatived by the order of the CIT(A) and this finding not been accepted by the Revenue as it has not challenged it before the Tribunal. Besides, the order of the Assessing Officer itself records the fact that the Chartered Accountant of the Respondent did attend the office of the Assessing Officer for a hearing on 12th February, 2009 and the same was adjourned to 26th February, 2009. Thereafter, again attended on 22nd October, 2009.
9. The main grievance of the Respondent with regard to the impugned order is that the Respondent had failed to produce the parties from whom the purchases were made. Mr. Pinto, learned Counsel appearing for the Appellant was not able to support the aforesaid submissions with the aid of any case law. In any view of the matter, as the Tribunal has on appraisal of evidence recorded a finding on facts by which it substantially upheld the finding which have been rendered by the CIT(A). The finding rendered by the Tribunal on the appraisal of the evidence led by the Respondent-Assessee before the authorities, is possible view. This finding has not been shown perverse and/or arbitrary in any manner. Thus, we see no reason to interfere with the impugned order dated 23rd February, 2013 passed by the Tribunal.
10. Accordingly the question as proposed does not give rise to any substantial question of law. Thus, it is not entertained.
11. Accordingly, Appeal dismissed. No order as to costs.