SMT. RAJ KUMARI,HAMIRPUR vs. ITO, HAMIRPUR

आदेश/ORDER

The present appeal has been filed by the assessee assailing the correctness of the order dated 08.09.2016 of CIT(A), Palampur pertaining to 1998-99 assessment year on the following grounds : 1. That the Worthy CIT (A) has erred in holding that belief of the Ld. Assessing Officer was based on the specific information regarding alleged accommodation entry arranged by the appellant by paying commission, therefore, the reopening of assessment u/s 147 of the Act and issue of notice u/s 148 of the Act by the Assessing Officer was in order and upheld. 2. a) That the Worthy CIT (A) has erred in not considering that in the earlier order, dated 05.04.2010 in the case of assessee for this year, the Worthy CIT (A) on page 4, para 6.21 of his order has held that reopening of assessment was unjustified and untenable as under:- "There being no material with the Department apart from the documents relating to VDIS which were already available with the Department to prove that income had escaped assessment for the impugned assessment year reopening of assessment was unjustified and untenable." b). That the Worthy CIT (A), therefore, by giving the instance of the decision of i). Hon'ble ITAT, Jurisdictional "B" Bench in the case of ITO Vs.Smt Payal Gupta (2008) 114 TTJ 426 and ii). IT/27/SML/2006-07, dated 02.06.2009 of Sh. Kamal Kishore Prop. M/s Malhotra Workshop, Doonga Bazar, Kangra ( H.P.), dated 02.06.2009. has held that reopening of assessment was unjustified and untenable. 3. Notwithstanding the above said facts, the Worthy CIT (A) has erred in confirming the addition of Rs. 7,78,892/- made by the Assessing Officer u/s 69A of the Income Tax Act by holding that in the case of assessee, no actual sale/purchase of jewellery had taken place and instead the assessee deposited Rs. 7,63,620/- in the bank account of M/s Bishan Chand Mukesh Kumar Saraf,

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Delhi and has obtained accommodation entry through bank draft of Rs. 7,63,620/- alongwith commission of Rs. 15,872/- totaling to Rs. 7,78,892/-/. 4. That the Worthy CIT (A) has erred in not considering that the assessee has sold jewellery which was declared under the VDIS Scheme 1997 and has paid proper taxes. It was further submitted that proper invoice has been issued by the said concern and sale consideration has been received through bank draft. 5. That the submission made during the course of hearing has not been considered property and addition of Rs. 7,78,892/- as above has been made against the facts and circumstances of the case. 2. The ld. AR inviting attention to the record submitted that the assessee has sold jewellery to M/s Bishan Chand Mukesh Kumar Saraf. The said concern to whom the jewellery has been sold, has been held to be a bogus concern by the Tax Department. Hon'ble Special Bench of the ITAT, Delhi, allowed the appeal of the assessee and held that the party namely M/s Bishan Chand Mukesh Kumar is genuine dealer of jeweler and as such all transactions of the parties with the above party were held to be genuine. However in an appeal filed by the department to the Delhi High Court, the Hon'ble High Court had set aside the issue to the file of the ITAT, Delhi to be decided denovo. The order of the ITAT passed in favour of M/s Bishan Chand Mukesh Kumar, it was submitted, was challenged before the Delhi Bench and the Hon'ble Delhi Bench was pleased to remand the issue to the file of the ITAT wherein a Special Bench has been constituted. Accordingly, it was his limited prayer that in case the concern is held to be a genuine concern, then the issues stand concluded in favour of the assessee and in case it is held to be a bogus concern, then the assessee would be relying upon his documents available on record to support the claim that the jewellery was owned by the assessee which was sold and the deposits are explainable therefrom. Accordingly, it was his limited prayer that the matter may be restored back to the AO. Said submission was not opposed by the ld. Sr.DR. 3. In the light of the submissions of the parties before the Bench, the impugned order is set aside back to the file of the AO with the direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. 4. In the result, the appeals of the assessee are allowed for statistical purposes. Order pronounced in the Open Court on 30.11. 2018. Sd/- (�दवा �संह ) (DIVA SINGH) �या�यक सद�य/Judicial Member “पूनम” आदेश क� ��त�ल�प अ�े�षत/ Copy of the order forwarded to : अपीलाथ�/ The Appellant – 2.��यथ�/ The Respondent -3.आयकर आयु�त/ CIT 4 आयकर आयु�त (अपील)/ The CIT(A) 5. �वभागीय 1. ��त�न�ध, आयकर अपील�य आ�धकरण, च�डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड� फाईल/ Guard File आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar