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Income Tax Appellate Tribunal, DELHI BENCH: “A”, NEW DELHI
Before: SHRI AMIT SHUKLA & SHRI O.P. KANT
Tribunal by the Hon’ble Delhi High Court in order dated 14/03/2012 in ITA 357/2009 and ITA 358/2009 respectively, while deciding bunch of 22 appeals, to give a finding whether the alleged transaction of sale of jewellery by the assessee to M/s Bishan Chand Mukesh Kumar/ Bemco Jeweller was genuine or not. Pursuant to the order of the Hon’ble High Court dated 14/03/2012, the cases were heard and being disposed of by way of this order.
In above cases, the assessee Sh. Anil kumar Bansal is son of another assessee late Sh. Nagarmal Bansal. The case of Sh. Nagarmal Bansal, is presently being represented by Sri Anil kumar Bansal in the capacity of legal heir.
The facts and circumstances of both the cases are identical except change of amount involved and therefore the facts of the case of Sh. Anil Kumar Bansal are only discussed in forthcoming parents.
The briefly stated facts of the case of Shri Anil Kumar Bansal(ITA No. 148/Del/2007) are that a search and seizure operation was conducted under section 132(1) of the Income-tax Act, 1961 (in short the ‘Act’) in the cases of M/s Bemco Jewelers Private Limited and its directors Sh. Manoj Aggarwal and Sh. Bishan Chand. On the basis of the documents seized during the course of search operation, proceedings under section 158 BD read with Section 158 BC of the Act were initiated in the case of M/s Bishan Chand Mukesh Kumar i.e. a partnership firm. The Assessing Officer having jurisdiction over the said case held that the material collected during the course of search as well as during the post search enquiries were sufficient to show that jewellery claimed to be purchased by the said parties including M/s Bishan Chand Mukesh Kumar from different persons were bogus and same were merely accommodation entries given against payment made in cash. As the assessee was one of such person, to whom such accommodation entries were allegedly given by M/s Bishan Chand Mukesh Kumar in the form of bogus sale of jewellery, the Assessing Officer having jurisdiction over the said case communicated this information to the Assessing Officer having jurisdiction over the case of the assessee.
4. On the basis of said information reassessment proceedings were initiated by way of issue of notice under section 148 of the Act. The assessee submitted that return filed vide receipt No. 0151 on 30/10/1998 with the Assessing Officer Ward 5(1) , New Delhi might be treated as return filed in response to notice under section 148 of the Act. This reference of return filed was not found to be existed in the record of the Income-tax Department and therefore Assessing Officer requested the assessee to file copy of the return of income stated to have been filed on 30/10/1998. But no compliance was made by the assessee even after issuing summon under section 131 of the Act. The Assessing Officer noted following six cheques obtained by the assessee from M/s Bishan Chand Mukesh Kumar amounting to Rs. 89, 34, 517/- as per details below:-
S. Bill No. Date Amount No. 1. 1036 6/1/98 310674/- 2. 1110 8/1/98 1930149/- 3. 1111 8/1/98 2068198/- 4. 1112 8/1/98 1578089/- 5. 1113 8/1/98 1817421/- 6. 1114 8/1/98 1229986/-
5. The assessee was asked to explain why the amount of Rs. 89, 34, 517/- might not be treated as income from undisclosed sources. The assessee was provided with a copy of the reasons recorded for initiating reassessment proceeding. At the fag end of the assessment proceedings i.e. 23/03/2006 the Authorized Representative of the assessee attended and objected to the reassessment proceeding initiated and submitted that (a) The jewellery which was sold to M/s Bishan Chand Mukesh Kumar was declared by the assessee under Voluntarily Disclosure Income Scheme ( VDIS) , 1997 and said declarations under VDIS was accepted by the concerned Commissioner of Income Tax, New Delhi. (b) None of the partners of the firm M/s Bishan chand Mukesh Kumar ever stated in any statement that the firm was engaged in providing accommodation entry. Affidavit of Sh. Bishan Chand was filed.
6. The Assessing Officer, however rejected the contention of the assessee and relying on the finding of the Assessing Officer in the case of M/s Bishan Chand Mukesh Kumar that the concern had no real business and were engaged only in providing accommodation entries in the garb of bogus transaction of purchase and sale of jewellery, bogus long-term capital gain by channelizing income of beneficiaries against commission income and the assessee being one of such beneficiary of accommodation entry. The Assessing Officer also noted that no details in respect of bank account of the assessee, as business activity and other details were furnished in spite of repeated request and the affidavit filed by the assessee of Shri Bishan Chand merely shows nexus between the entry operators and the beneficiary assessee. The Assessing Officer also calculated amount of commission payable at the rate of 0.50% for obtaining accommodation entry, which was worked out to Rs. 44,672/-and in this manner, the Assessing Officer made total addition of Rs. 89,79,189 ( 89,34,517+ 44,672) to the returned income of the assessee in assessment order passed under section 143(3)/147 of the Act on 24/03/2006.
7. Aggrieved with the order of the Assessing Officer, the assessee preferred appeal before the Ld. CIT(A) challenging both the initiation of reassessment proceedings as well as merit of the addition. The Ld. CIT(A) though upheld validity of the reassessment proceedings, but deleted the addition holding that:
(a) Existence of the jewellery was established on the basis of VDIS certificate issued by the Commissioner and which was neither withdrawn or not cancelled by the competent authority (b) No evidence was brought on record by the Assessing Officer whether the said jewellery still existing with assessee even after the impugned sale. (c) The jewellery shown in the purchase bill tallied with the jewellery declared in VDIS certificate. (d) The buyer had confirmed and denied that he ever made any statement before any authority about bogus nature of purchase/sales (e) The buyer is assessed to income tax and sales tax acts in the Assessing Officer could not point out any discrepancy in the evidence relied by the assessee nor brought any credible evidence to contradict the contention of the assessee. (f) No opportunity was granted to the assessee to rebut the materials relied upon by the Assessing Officer. (g) 8. Aggrieved with the relief allowed by the Ld. CIT(A), the revenue filed appeal before the Tribunal, which was allowed by the Tribunal vide order dated 25/09/2008 following the decision of the special bench of the Tribunal, New Delhi in the case of Tejinder Singh HUF and others rendered vide its order dated 25/07/2008 in IT(SS)A No. 404/Del/2003 and others reported in 113 ITD 377.
Aggrieved with the, decision of the Tribunal, the Revenue filed appeal before the Hon’ble High Court, wherein the Hon’ble High Court in ITA 357/2009 , in a bunch of 22 appeals, restored the matter to the Tribunal with following directions:
“ The issue raised in these appeal to the alleged bogus sale of jewellary by the assessee to either Bishan Chand Mukesh Kumar or Bemco Jewellers. We find that the Tribunal has not returned specific findings in respect of each of these matters as to whether there was a genuine sale or not. It has merely relied upon the case of Tejinder Singh decided on 25.07.2008 in IT(SS)A. No. 404/Del 2003. Though we find that it almost all these cases there is a finding returned by the Commissioner of Income Tax that the transactions were genuine, since the revenue had challenged those findings, it was incumbent upon the Tribunal to independently examine; each of the eases and return a specific finding as to whether there was a genuine transaction of sale of jewellary by the asseesee to Bishan Chand Mukesh Kumar/ Bemco Jewellers. Since the Tribunal has not done that, we are setting aside the impugned orders and are remitting the matters to the Tribunal for considering this aspect of the matter so that the Tribunal can return a clear finding in respect of each of the matters as to whether the alleged transaction of sale of jewellery was genuine or pot” .
9. Before us, the Ld. counsel filed a paper book containing pages 1 to 78 inter alia including copy of affidavit of Bishan Chand and relied on the submission made before the Ld. CIT(A). The Ld. Counsel also relied on the decision of the Tribunal dated 19/08/2016 in the case of ITO Vs. Sanjeev & Sons (HUF) in for Assessment Year 1998-99. The Ld. Counsel submitted that this is one of the cases out of the 22 appeals and the Tribunal has deleted the addition in the said case. He submitted that facts and circumstances of the instant case being identical with the facts and circumstances of the case of Sanjeev & Sons (HUF) (supra), the addition in the instant case also need to be deleted. The Ld. DR on the other hand, relied on the order of the Assessing Officer and objected to deletion of the addition by the Ld. CIT(A). The case was accordingly heard on 11/10/2017.
Subsequent to the hearing of the case, the bench noted that in other two cases out of the set of 22 cases decided by the Hon’ble High Court, i.e. (i) Sh.
Ajit Prasad Jain (ITA No. 4200/Del/2006) and (ii) Ajit Prasad & Sons (HUF), the Tribunal restored the matter to the file of the Assessing Officer for verifying the genuineness of the sale of jewellery to M/s Bishan chand Mukesh Kumar. In view of the above decisions of the Tribunal, the case was again fixed for hearing on 23/11/2017. The case was then adjourned from time to time on the request of the Ld. Counsel or Bench not functioning and it was finally heard on 25/05/2018.
On said date the Ld. Counsel filed copy of the decision of the Tribunal in the case of Smt. Madhu Gupta (ITA No. 3341/Del/2007), wherein, the Tribunal upheld the deletion of addition of sale of jewelry.
We note The Hon’ble High Court in its order dated 14/03/2012 has directed the Tribunal to examine each of the cases independently for giving a specific finding whether there were genuine transaction of sale of jewellery by the assessee to M/s Bishan Chand Mukesh Kumar/ Bemco Jewellers. We note that in the case of Tejinder Singh HUF (supra), the transaction of the sale of jewellery to Bemco Jewellers Private Limited was under consideration.
Before us the learnerd Counsel of the assessee has contended that jewellery in question was already declared in the VDIS scheme and a certificate in this respect has been drawn by the then Commissioner of income tax having jurisdiction over the case. In our opinion declaration of jewellery under VDIS scheme may establish purchase or possession of the jewellery, in the hands of the assessee, but same cannot explain genuineness of the sale and corresponding credit in the bank account.
Further the Ld. Counsel contended that Sh. Bishan Chand partner of the firm, in the affidavit filed has confirmed the sale of amount of jewellery in question to the firm and the firm was not engaged in providing any accommodation entries. In our opinion, an affidavit is a self-serving document and for admitting the same as evidence, it should be corroborated with other documentary evidences. In the instant case, the assessee was asked to explain the credit amount in the bank account and the assessee claimed that it was as a result of sale of jewelry. In the circumstances, the onus was on the assessee to establish that it was genuine sale. The assessee was required to produce Sh.
Bishan Chand alongwith documentary evidences before the Assessing Officer for discharging his onus.
The Ld. Counsel further contended that purchases and sales details shown by M/s Bishan Chand Mukesh Kumar in the sales tax returns were accepted by the Sales Taxes Department and thus the purchases shown by M/s Bishan Chand Mukesh Kumar cannot be doubted. In our view, the details purchases and sales have been filed by the assessee in the return of sales Department by way of self declaration and no physical verification has been made by the sales Department, and thus filing return before the sales Department is not conclusive evidence of sale of jewellery by the assessee to M/s Bishan Chand Mukesh Kumar.
The Ld. CIT(A) observed that the Assessing Officer has not brought on record any evidence whether the jewellery is still in the possession of the assessee. In our opinion, to establish whether the transaction of the sale was genuine or not, was on the assessee and not on the Assessing Officer. Thus, the Assessing Officer cannot be asked to bring on record whether the said jewellery, which was declared in the VDIS scheme, is still in the possession of the assessee.
In the case of M/s Sanjeev & Sons (HUF) (supra) relied upon by the Ld. Counsel the appeal was heard ex parte, qua the assessee and it has not been brought to the notice of the Tribunal that it was a Hon’ble High Court remitted matter. In our opinion, proper facts have not been presented before the Tribunal in said case and therefore we do not find appropriate to rely upon said case. The Ld. Counsel also relied on the decision of the Tribunal in the case of Smt. Madhu Gupta (supra). We have noted that the Hon’ble High Court has directed to examine the each case independently, thus, the addition in the instant case can’t be deleted merely on the basis of finding given in another case.
In the other cases, out of the bunch of the 22 appeals remitted by the Hon’ble High Court, while adjudicating the cases of Sh. Ajit Prasad Jain (supra) and Ajit Prasad & Sons (HUF)(supra) the Tribunal has remitted the matter of examining genuineness of the sale of jewellery by the assessee to the file of the Assessing Officer, observing as under:
We have heard and considered the submissions of both the parties and have gone through the entire material available on record. From the directions of Hon’ble Jurisdictional High Court, as reproduced above, the Tribunal is required to examine as to whether the alleged transaction of sale of jewellery was genuine or not and to return its finding thereat.
6.. A perusal of impugned order reveals that one of the assessee’s stands has been that the firm M/s. Bishan Chand Mukesh Kumar is assessed to tax regularly and for the instant year the assessment was completed u/s. 143(3) accepting the turnover declared by it. However, the fact remains that assessment in the case of M/s. Bishan Chand Mukesh Kumar has also been subsequently made u/s. 158BC of the Act, which has been taken into account by the AO in the instant proceedings. The assessee has not whispered even a single word on these proceedings subsequently taken against the alleged purchaser u/s. 158BC of the Act. Hence, this stand of assessee does not render any support to the case of the assessee.
7. The other stand of the assessee in both these cases has also been that the sales tax assessment of M/s. Bishan Chand Mukesh Kumar for the year was completed on the turnover of Rs.134 crores and the transaction of sale of jewellery was confirmed by way
of affidavit of Sh. Bishan Chand and all these documentary evidences/orders were submitted before the AO. However, on perusal of the assessment order of assessee (HUF) shows that that the AO has recorded following categorical finding:
“The assessee was required to furnish documentary evidence to the sale of this jewellery as also books of accounts, vouchers and bank passbook. A number of opportunities were given to the assessee but the assessee failed to furnish any information or supporting evidence. The 7 & 4199/Del./2006 assessee was specifically asked to furnish evidence to the acquisition of the above said jewellery. In the absence of any evidence, I have reason to belief that this is accommodation entry and has been routed through a sale bill by obtaining draft/cheque against payment of cash from M/s. Bishan Chand Mukesh Kumar.” 7.1 In view of the above contradictions, it is not proper to record a decisive finding based on examination of such evidences, alleged to have been produced before the AO. Secondly, the Sales Tax assessment order of M/s. Bishan Chand Mukesh Kumar for the relevant year, placed in the paper book before us, nowhere reveals that the alleged sale of jewellery made by the assessee are included in the gross turnover declared to the Sales Tax authorities or not nor any such fact is written in the said sales tax assessment order. This fact cannot be ascertained by the Tribunal unless the list of total purchases submitted before the Sales Tax Authorities is placed on record before us for examination to ascertain whether the purchases allegedly made from the assessee were declared by the purchaser before the Sales Tax Authorities. However, no such list of purchase submitted before the concerned sales tax authorities, is available here on record. Secondly, it is also not clearly proved by any evidence that the purchase vouchers placed before us also formed the part of purchase vouchers placed before the Sales Tax Authorities for ascertaining the fact that the impugned sale of jwellery was included in the purchases of Bishan Chand Mukesh Kumar declared 8 ITA No.4200 & 4199/Del./2006 before the Sales Tax Authorities. This aspect of the case needs thorough examination at the stage of Assessing Officer from the records of Sales Tax Authorities and from books of purchaser before finally deciding the issue as per directions of the Hon’ble High Court.
8. The contention of the assessee is also that the impugned jewellery was declared in VDIS, 1997. This fact is evident from the documentary evidence placed by the assessee and is well recorded in the orders of the authorities below. However, it is not the stand of the assessee before us that the factum of declaration of jewellery in VDIS, 1997 was not there before the Hon’ble jurisdictional High Court before the matter has been restored back to the Tribunal for examination of actual sale transactions made by the assessee. Therefore, in view of express directions of Hon’ble jurisdictional High Court to examine the actual sale transactions made by assessee, the decisions relied by the assessee render no support to the assessee in the peculiar facts and circumstances of the instant case.
9. The other stand taken by the assessee has also been that some of the Assessing Officers at Amritsar, Delhi and Mathura have summoned Shri Bishan Chand and he in his statements had confirmed the purchase of 9 & 4199/Del./2006 jewellery and denied that they are providing only accommodation entries. However, here we find that the ld. Assessing Officer appears to have not summoned the said purchaser for verification of the actual purchase/sale transaction of the impugned jewellery. Therefore, before repudiating this stand of the assessee, the AO is required to summon the alleged purchaser of impugned jewellery and to record its statement to ascertain the truth. All these exercises are necessary to be made before deciding the issue in view of the directions of Hon’ble Jurisdictional High Court. Such exercises/enquiries, being not possible at the stage of Tribunal, can be conducted at the stage of Assessing Officer well. The ld. AR was asked if he has any other evidence to establish that the impugned sale of jewellery is recorded in any of books of a/c of purchaser, but he showed his inability to presently adduce any such direct evidence before us. On the other hand, the ld. DR also could not prove by any positive evidence to establish that the impugned sale of jewellery was not recorded in and verifiable from the books of alleged purchaser. In present of all these facts, we, therefore, think it appropriate in the interest of justice to restore the issue back to the file of Assessing Officer for deciding the same after verifying the actual
purchase/sale transaction & stock entry of impugned jewellery from the books of accounts of the purchaser, records of concerned Sales Tax 10 & 4199/Del./2006 Authorities and if need be, by summoning the purchaser for examination and also by considering all the stands taken by the assessee before the authorities below. Needless to say, the assessee shall be given reasonable opportunity of being heard before deciding the issue on merits in the light of observations made by us as above. Accordingly, the appeal of the Revenue is allowed for statistical purposes.”
In another case of Sri Gunvir Kumar Jain (ITA 378/2009), out of the 22 appeals remitted by the Hon’ble High Court, the Tribunal has remitted the matter to the file of the Ld. Assessing Officer observing as under:
We have carefully considered contentions of the Ld. DR and also considered the contentions of assessee raised at various appellate forum earlier. We have also carefully considered the direction of the Hon’ble Delhi High Court. Further coordinate bench in case MS. Sarla Jain, wherein identical direction was given by Hon'ble Delhi High Court, has decided issue as under:-
"3. We have perused the submissions advanced by both the sides in the light of the records placed before us as well as the directions of Hon’ble High Court vide order dated 14/03/12 passed in a group case, where pertains to the appeal filed by the revenue against the present assessee.
It is very much necessary to reproduce the relevant extract of the observations of Ld.CIT (A) on merits on this issue, which is as under:
"8. Now coming to the merits of the case, it is very clear from the details filed during the course of the assessment proceedings as well as the appellate proceedings that the jewellery in question was declared under VDIS Scheme, which has now been sold and the payments received by account payee cheques. A copy of the VDIS declaration along with valuation report and copy of certificate issued by the Commissioner of Income-tax, Delhi-
V, New Delhi, u/s 68(2) of the VDIS Scheme, 1997, along with copy of challan of tax deposited have been furnished. The individual items sold as per the bill issued by the jeweller exactly cross-tally with the items declared in the valuation report filed under VDIS Scheme The sale of jewellery in question and capital gain hereon was duly declared in the return for AY 1998-99 filed on 14.07.1998 much before the date of search in the case of M/s Bishan Chand Mukesh Kumar Saraf. This return of income has been filed and accepted much before the date of notice issued u/s 148 in case of the appellant. Copies of Income-tax return along with computation of income chargeable under the head capital gains, bills etc. have been furnished in support which have been placed on record. Besides the above, the jeweller himself has also confirmed the sale of jewellery by way of an affidavit filed in support, copy of which has also been placed on record.
8.1 There is no dispute that the assessee has made a disclosure under VDIS, 1997. The declaration was accepted by the CIT vide certificate issued under section 68(2) of the VDIS, 1997. The assessee got the valuation done from registered valuer and filed the valuation report along with the VDIS declaration. Since under the VDIS, it has been provided that such disclosure when accepted offers complete immunity to the declarant in respect of the income so disclosed, in the absence of any material to show that such certificate has been cancelled or withdrawn or amended by the CIT under the VDIS, 1997, the Assessing Officer has erred in treating the sale of such jewellery as bogus. Such finding of the Assessing Officer is against the scheme of the VDIS, 1997. 8.2 Admittedly, in this case the Assessing Officer received information from DCIT Central Circle-3, New Delhi, about receipt of cheques of Rs.57,95,097/- by the appellant from M/s Bishan Chand Mukesh Kumar.
Later on, the assessing Officer made addition of the above amount as undisclosed sources on the basis of the assessment in the case of M/s Bishan Chand Mukesh Kumar based on statement of Sh. Manoj Aggarwal that he was in the business of providing accommodation entries wherein he used to issue cheques from various bank accounts under his control against the cash received from the person who used to approach Sh. Aggarwal through mediator. 8.3 However, it is observed that the Assessing Officer has passed the assessment order in clear violation of principles of natural justice. He has neither provided copies of any seized material to the appellant nor has allowed the appellant to cross-examine Sh. Manoj Aggarwal. The Assessing Officer it seems has heavily relied on the assessment in the case of M/s Bishan Chand Mukesh Kumar based on the statement of Sh. Aggarwal. Even if the statement of Sh. Aggarwal is taken as gospel truth, it cannot be made the basis of addition without confronting the appellant. It is well settled proposition of law that any evidence gathered behind the back of the assessee cannot be used against him without providing him an opportunity to rebut the same. Therefore, on this ground alone, the entire addition deserves to be deleted, more so, when the transactions stand duly reflected by the appellant. 8.4 It is also observed that the Assessing officer chose not to make any comments on the proven factual matrix of the case. No evidence/seized material whatsoever has been brought on record to reach this conclusion that the cheques amounting to Rs. 57,95,097/- received from M/s Bishan Chand Mukesh Kumar Saraf represented sham transaction. There is also nothing on record to show that the appellant paid any cash or commission to M/s Bishan Chand Mukesh Kumar Saraf for providing the alleged bogus entries. The appellant was also not confronted with any such evidence during the course of assessment proceedings despite having made a request in writing in this regard. The detailed submissions made by the appellant during the course of the assessment proceedings have been rejected in one go on the ground that in view of the circumstantial evidence as per discussion made in the assessment order of M/s Bishan Chand Mukesh Kumar Saraf, it was apparent that the assessee had not made actual sale of jewellery but merely obtained accommodation entry through device of sale of jewellery. In fact, the onus to prove so clearly lied on the shoulders of the department and not on the appellant, more so in the absence of any evidence brought on record to support any such allegation. The appellant, on the other hand, has furnished incontrovertible evidence in support of his claim of purchase/sale of jewellery. The appellant has thus discharged his onus of proving the transaction. The addition made by the Assessing Officer by considering that the appellant has introduced his own unaccounted money as his income from sale of jewellery and the entire transaction was nothing but mere accommodation entries can, therefore, at best be summed up as nothing more than mere conjecture and surmise on his part without any evidence to support this theory. Hence, in view of the evidence filed by the appellant, I find no justification on the part of the Assessing Officer to hold that the transaction of sale of jewellery was not genuine and consequently the consideration that it was undisclosed income of the appellant. The addition made on this count is, therefore, liable to be deleted in to to on merits as well.
8.5 It is also observed that the various-case laws and appellate orders, relied upon by the appellant are squarely in support of his case. To quote a few, on exactly the same facts and circumstances, the Hon'ble IT AT, Mumbai Bench, in the case of ITO Vs Smt. Jyoti Prakash Chhabria & Ors. (Mumbai) in ITANos. 1592,1593,1601,1602 & i6c>3/Mum/2004: Asst. yrs. 1998-99 & 1999- 2000, (2006) 99 TTJ (Mumbai) 351, confirmed the order of the CIT(A) deleting such addition u/s 68 and 69C taking into consideration the declaration under VDIS, manner of transaction, absence of material regarding payments of commission, and other relevant facts.
Similar addition on similar facts and circumstances was .deleted in the case of Asst. CIT Vs Surya Kanta Dalmia, IT AT, Kolkata 'A' Special Bench' in Assessment Year 1998-99 (2006) 99 TTJ (Cal)(SB) 1. The appellant has also placed reliance on the decision on the Hon'ble ITAT, Amritsar Bench, Amritsar in the case of ACIT vs. Sh. Jagdish Mitter in ITA No. 268(ASR)/2002, where again on same facts and circumstances as in the instant case, the addition u/s 68 while considering the sale of VDIS jewellery to M/s Bishan Chand Mukash Kumar Saraf was deleted by the Hon'ble Tribunal. 8.6 In view of the above discussion and respectfully following the decisions of various appellate authorities cited Supra, it is hereby held that the Assessing Officer was not justified in treating the sale of jewellery as bogus. The addition of Rs. 57,95,097/- made on this count is, accordingly, hereby deleted.
It may, however, be mentioned here that while making the aforesaid addition, the Assessing Officer had ignored the Long Term Capital loss declared on sale of jewellery at Rs. 5,36,074/- as the transaction had been treated to be an accommodation entry. However, since the entire addition stands deleted vide para 8.6, supra, the Long Term Capital Loss as declared will have to be allowed in the hands of the assessee. The Assessing Officer is, accordingly, hereby directed to take the Long Term Capital Loss on sale of jewellery at Rs. 5,36,074-
as declared by the appellant in his return of income. In the result, the appeal is partly allowed."
On the outset Ld.AR placed on record the decision passed by Hon'ble Allahabad High Court in the case of CIT vs. Mohan Lai Aagarwal, reported in (2013) 35 taxman.com 258, wherein Ld.AR submits that Hon'ble High Court has decided the issue on identical facts. We have perused the submissions of Ld-AR on the basis of the order passed by Hon'ble Allahabad High Court. 4.1. In the facts of the Acit Circle 30 (1), vs Gunvir Kumar Jain, on 4 April, 2018 present case Hon'ble High Court, while remanding the issue, directed this Tribunal to independen*_ examine each of the case and return a specific finding, as to whether there was a genuine transact!:: of sale of jewellery by assessee to M/s Bishan Chand Mukesh Kumar/Bemco Jewellers. 4.2. Thus il is very clear from the specific direction by Hon'ble High Court that, jewellery declared by assessee under Voluntary Disclosure of Income Scheme (VDIS) has not been doubted, however the direction is in respect of alleged sale of Jewellery made by assessee to M/s Bishan Chand Mukesh Kumar/Bemco Jewellers needs verification. 4.3 Before us, assessee filed various decisions passed by Coordinate Benches of this Tribunal in various cases, where no reference regarding the directions passed by Hon'ble High Court has been made. Under such circumstances we are not inclined to follow any of these decisions cited by Ld.AR, as these are not on identical facts. 4.4 Before us assessee has neither submitted any details regarding sale of jewellery, not any documentary evidences in order to prove the actual sale. Therefore in view of specific direction by Hon'ble High Court it is incumbent upon us to verify the genuineness of the sale transaction of jewellery by assessee to Bishan Chand Mukesh KumarjBemco Jewellers. The issue before us is that assessee disclosed jewellery under VDIS 1997, and sold jewellery to Bishan Chand Mukesh Kumar. Bishan Chand Mukesh Kumar, has already deposed that he has not purchased any jewellery but has issued bogus bills. It is a claim of assessee that she has sold jewellery to Bishan Chand Mukesh Kumar, who has denied of having purchased the same. In view of this it is apparent that assessee might have obtained cheque from Bishan Chand Mukesh Kumar without proving any sale of jewellery. The onus therefore lies on assessee to prove that a sum of Rs.57,95,097/- has been received by her on account of sale of jewellery. The buyer being Bishan Chand Mukesh Kumar is the witness to the sale as assessee has produced the bills of purchases issued by Bishan Chand Mukesh Kumar. Therefore in view of the directions passed by Hon'ble Delhi High Court, we direct assessee to produce Bishan Chand Mukesh Kumar before Ld. AO along with their books of account and details of purchase/sale of jewellery. Ld. AO is directed to verily the evidences produced by assessee to examine the sale of jewellery and decide the issue afresh in accordance with law. 4.5. Accordingly we allow the appeal filed by revenue for statistical purposes."
Facts of the case before us are identical to the issue decided by the coordinate bench. The issue involved in the present case is that sale of jewelry shown by the assessee to the jeweler is alleged to be an accommodation entry and there is no real sale. This allegation is based on the facts gathered by the investigation wing where the jeweler has confessed the same. Hence we also direct the assessee to produce jeweler, in person, along with the books of accounts of jeweler (i)
treatment of sale of jewelry by the assessee in books of jeweler (ii) the impact in the assessment order of the jewelers of this sale whether the (iii) jeweler has accepted it is real sale or merely an accommodation entry
Any other details regarding the purchase of jewelry from assessee The assessee (iv) is directed to produce jeweler with these details before the Id AO within three months from the date of receipt of this order. The Id AO may examine the jeweler with respect to his books of accounts as well as the earlier allegation of accommodation entry provided by the jeweler and then examine the issue afresh and decide the issue of genuineness of sales of jewelry. If the assessee fails to produce the jeweler along with necessary details as directed, Ld AO may decide the issue on merit as per facts available on record.
In the result, appeal filed by the revenue is allowed for statistical purposes.
CO.120/Del/07:-
From the order of the High Court, it is observed that assessee had neither preferred any appeal to Hon'ble High Court challenging the validity of reopening, nor has Hon'ble High Court directed this Tribunal to decide the legal issue that was taken by assessee before this Tribunal. Accordingly in our considered opinion the Cross Objection raised by assessee at this juncture as on today does not arise out of the directions passed by Hon'ble High Court vide order dated 14/03/12 in a group of cases wherein assessee has been one of the respondent in ITA No. 764/2010. Accordingly we dismiss the Cross Objection raised by assessee. It is not open to challenge the reopening by assessee before any forum as this has attained finality by the order of Hon'ble High Court as on date.”
Facts of the case before us are identical to the issue decided by the Coordinate-Bench in the case of Ajit Praasd Jain (supra), Ajit Prasad and sons ( HUF) and Gunvir Kumar Jain. In our opinion, in the instant case also for giving independent finding of the fact whether the sale of jewellery by the assessee is a genuine transaction or not , the matter need to be restored to the file of the Assessing Officer. We order accordingly and direct the Assessing Officer to decide the issue following the direction of the Tribunal given in para 7 of the order of the tribunal in the case of Gunvir Kumar Jain (supra). It is needless to mention that the assessee shall be afforded adequate opportunity of being heard. In the result, the appeal of the Revenue is allowed for statistical purposes.
The facts and circumstances in the case of late Sh. Nagarmal Bansal though legal heir Sh. Anil Kumar Bansal ( for Assessment Year 98-99, are identical to the facts of the case in the case of Sh. Anil Kumar Bansal ( ITA No. 148/Del/2007) for Assessment Year 98-99, accordingly the matter remitted by the Hon’ble High Court for giving finding of the fact whether the sale of the jewellery by the assessee is genuine or not, is remitted to the file of the Assessing Officer for deciding in accordance with the directions given in the case of Sh. Anil Kumar Bansal (supra). In the result, the appeal is accordingly allowed for statistical purposes.
To sum up, both the appeals of the Revenue are allowed for statistical purposes.
Order pronounced in the open court on 31/5/2018.