COMM. OF INCOME TAX HYD vs. N.K.ESTATES P LTD

1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR DB Income Tax Appeal No.156/2003 M/s Kalpatru Gems vs. CIT & Anr. Date of Order : 23.11.2016 HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE MAHENDRA MAHESHWARI Mr. Priyesh Kasliwal for Mr. P.K. Kasliwal, for the appellant. Mr. Anuroop Singhi for the respondents. 1. By way of this appeal, the appellant has assailed the judgment & order of the Tribunal whereby the Tribunal has allowed the appeal of the department and reversed the order passed by the CIT(A). 2. This Court while admitting the matter on 18/9/2003 framed following question which reads as under:- “Whether the Tribunal was correct in law, in sustaining an addition of Rs. 2,28,937/- on account of investment in purchases u/s 69 of the I.T. Act 1961, on the facts, which were not examined by the CIT (A), such a conclusion is not perverse and is sustainable in the eye of law? 3. The same question in respect of same assessee came up for consideration in tax appeal No.163/2003 and vide order dated 21st September, 2016, this Court has decided the issue in favour of the department. 4. Counsel for the appellant also contended that for the purpose of bogus purchase, judgment of 2nd November, 2016, passed in DB Income Tax Appeal No. 430/2009 (Commissioner of Income Tax-Jaipur vs. Sambhav Gems Ltd.) may be followed.

2 5. In view of the fact that the issue will be governed by the decision of this Court in case of assessee himself and in case of Sambhav Gems Ltd namely Vijay Proteins Ltd. & N.K. Industries will be valid. Para 3 & 4 of the judgment in Sambhav Gems reads as under:- “3. Considering the law declared by the Supreme Court in the case of Vijay

Proteins

Ltd.

Vs. Commissioner of Income Tax, Special Leave to Appeal (C) No.8956/2015 decided on 06.04.2015 whereby the Supreme Court has dismissed the SLP and confirmed the order dated 09.12.2014 passed by the Gujarat High Court and other decisions of the High Court of Gujarat in the case of Sanjay Oilcake Industries Vs. Commissioner of Income Tax (2009) 316 ITR 274 (Guj) and N.K. Industries Ltd. Vs. Dy. C.I.T., Tax Appeal No.240/2003 decided on 20.06.2016, the parties are bound by the principle of law pronounced in the aforesaid three judgments. 4. We remit back the case to the Assessing Officer for deciding afresh on the factual matrix. The authority will accept the law but the transaction whether it is genuine or not will be verified by the Assessing Officer on the basis of the aforesaid three judgments. The

issues

are

answered accordingly.

The

appeal

is accordingly disposed of. 6. The matter is remitted back to the Assessing Officer for deciding afresh only on the factual matrix and in view of the last paragraph of the judgment, the issue is decided in favour of the department against the assessee. 7. The appeal stands disposed off. (MAHENDRA MAHESHWARI),J. (K.S.JHAVERI),J. A.Sharma/30