Smt. Veena Chawla, New Delhi V. ITO, New Delhi

ITA 1106/DEL/2009

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 8450 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2009
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 07-07-2009
• Assessment Year: 1999-2000
• Appeal Filed On: 25-03-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NANDITA KANCHAN
• Assessee Lawyers: V D AGGARWAL
• Keywords: Bogus purchase; Additional evidence; Valuation report; Accommodation entries; Reason to believe
• Section: 147; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C : NEW DELHI BEFORE SHRI I.P.BANSAL, JM AND SHRI R.C.SHARMA, AM ITA NO.1106/DEL/2009 ASSESSMENT YEAR : 1999-2000 SMT.VEENA CHAWLA, 159-161, 1 ST FLOOR, KATRA BARYAN, FATEHPURI, DELHI. PAN NO.AATPC5980E. VS. INCOME TAX OFFICER, WARD-28(3), NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI V.D.AGGARWAL, CA. RESPONDENT BY : SMT.NANDITA KANCHAN, DR. ORDER PER R.C.SHARMA, AM : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF CIT(A) DATED 10.2.2009 FOR THE AY 1999-2000, IN THE MATTER OF OR DER PASSED U/S 143(3)/148. 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PER USED. IN THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE VALIDITY OF REOPENING A S WELL AS MERIT OF THE ADDITION MADE ON ACCOUNT OF JEWELLERY SOLD TO BISHAN CHAND M UKESH KUMAR WHICH WAS EARLIER DISCLOSED BY HER UNDER VDIS SCHEME. SO FAR AS REOPENING IS CONCERNED, IT IS OBSERVED THAT AT THE TIME OF ISSUE OF NOTICE, IT IS SUFFICIENT THAT PRIMA-FACIE REASONS AND MATERIAL SHOULD BE WITH ASSESSING OFFIC ER THAT THERE IS ESCAPEMENT OF SOME INCOME. AT THE TIME OF ISSUE OF NOTICE THE AS SESSING OFFICER IS NOT REQUIRED TO CONCLUSIVELY ESTABLISH THAT THERE IS ESCAPEMENT OF INCOME, MERE BONA-FIDE REASON TO BELIEVE THAT THERE IS ESCAPEMENT OF INCOM E IS SUFFICIENT FOR ISSUE OF NOTICE UNDER SECTION 148. RECENTLY THE HON'BLE SUP REME COURT IN THE CASE OF ACIT V/S RAJESH JHAVERI, STOCK BROKER PVT. LTD, 291 ITR 500, OBSERVED THAT THE EXPRESSION REASON TO BELIEVE IN SECTION 147 WOULD MEAN CAUSE OR JUSTIFICATION. IF ITA-1106/D/2009 2 THE ASSESSING OFFICER HAS CAUSED OR JUSTIFIED TO KN OW OR SUPPOSE THAT INCOME HAD ESCAPED ASSESSMENT, HE CAN BE SAID TO HAVE REASON T O BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT. THE EXPRESSION CANNOT BE READ TO MEAN THAT THE ASSESSING OFFICER SHOULD HAVE FINALLY ASCERTAINED THE FACT BY LEGAL EVIDENCE OR CONCLUSION. WHAT IS REQUIRED IS REASON TO BELIEVE BUT NOT THE ESTABLISHED FACT OF ESCAPEMENT OF INCOME. AT THE STAGE OF ISSUE OF NOTICE, THE ON LY QUESTION WHETHER THERE WAS RELEVANT MATERIAL ON WHICH A REASONED PERSON SHOULD HAVE FORMED THE REQUISITE BELIEF. WHETHER MATERIAL WOULD CONCLUSIVELY PROVE ESCAPEMENT OF INCOME IS NOT THE CONCERN AT THAT STAGE. THIS IS SO BECAUSE THE FORMATION OF THE BELIEF IS WITHIN THE REALM OF THE SUBJECTIVE SATISFACTION OF THE ASS ESSING OFFICER. IN THE INSTANT CASE ON THE BASIS OF REASONS SO RECORDED, WE FOUND THAT THERE WAS SUFFICIENT MATERIAL ON THE BASIS OF WHICH A REASONED PERSON CA N HAVE REASONABLY FORMED THE REQUISITE BELIEF THAT THERE WAS ESCAPEMENT OF INCOM E. ACCORDINGLY, GROUND TAKEN BY THE ASSESSEE FOR REOPENING THE ASSESSMENT U/S 14 7 STANDS DISMISSED. 3. IN RESPECT OF THE ITEMS DISCLOSED IN THE VDIS DE CLARATION VIS--VIS ITEMS SOLD BY THE ASSESSEE, THE CIT(A) OBSERVED THAT AS P ER THE CERTIFICATE U/S 68(2) OF THE VDIS, 1997, THE ASSESSEE HAD DECLARED GOLD JEW ELLERY, PERTAINING TO AY 1985-86 AT A VALUE OF RS.16,88,416/- AND SILVER UT ENSILS PERTAINING TO AY 1973- 74, AT A VALUE OF RS.22,284/-. NO MENTION OF WEIGH T/CARAT ETC. IS MADE IN THE DECLARATION RELATING TO GOLD AND SILVER JEWELLERY. THERE IS NO MENTION OF DIAMOND JEWELLERY IN THE CERTIFICATE U/S 68(2) OF THE VDIS, 1997. SHE FURTHER NOTED THAT THERE IS THUS AN OBVIOUS IRRECONCILABLE MISMATCH IN DESCRIPTION OF THE JEWELLERY IN THE CERTIFICATE U/S 68(2) OF THE VDIS AND THE VALUA TION REPORT OF VIJAY KUMAR GUPTA. A COPY OF VALUATION REPORT FROM VIJAY KUMAR GUPTA WAS FILED IN RESPECT OF SILVER UTENSILS, INDICATING 48 KGS. OF SILVER, V ALUED AT RS.22,284/- AS ON 31.3.1973. LEARNED CIT(A) FURTHER FOUND THAT ON CO MPARISON OF THE VALUATION REPORT SUBMITTED BY ASSESSEE AND THE PURPORTED PURC HASE INVOICE OF BISHAN CHAND MUKESH KUMAR, IT IS NOTED THAT THE ITEMS APPEARING AT SERIAL NUMBER 3 OF THE VALUATION REPORT (6 GOLD SETS (24 PCS) IN 22 CARAT HAVING NET WEIGHT OF 400.6 GM); ITA-1106/D/2009 3 AND PART OF THE ITEMS APPEARING AT SERIAL NUMBER 1 AND 5 OF THE VALUATION REPORT (4 GOLD BANGLES IN 22 CARAT HAVING NET WEIGHT OF 160 G M AND 6 GOLD CHAINS HAVING NET WEIGHT OF 224 GM) WERE NOT SOLD. SHE FURTHER FOUND THAT THE PURPORTED INVOICE OF BISHAN CHAND MUKESH KUMAR REVEALS CRITICAL DEFECTS AND DISCREPANCIES IN RESPECT OF THE SO CALLED SALE RATE ALSO. THUS, ALL ITEMS O F JEWELLERY (OTHER THAN THE 14 CARAT JEWELLERY LISTED AT SERIAL NUMBER 12 AND 22 CARAT 6 GOLD SETS LISTED AT SERIAL NUMBER 3 OF THE VALUATION REPORT), IRRESPECTIVE OF 22 OR 2 3 CARAT GOLD CONTENT, ARE CLAIMED TO HAVE BEEN SOLD BY THE ASSESSEE AT THE UNIFORM RA TE OF RS.400/GM. (THE 14 CARAT GOLD JEWELLERY IS CLAIMED TO HAVE BEEN SOLD AT RS.3 20/GM). THE CIT(A) OBSERVED THAT IT IS AN IMPOSSIBLE PROPOSITION IN A GENUINE S ALE TRANSACTION THAT THE SELLER WOULD SETTLE AT A UNIFORM RATE WHEN SHE HAS GOLD JE WELLERY OF VARYING PURITY AND CARAT. LIKEWISE, IT IS IMPOSSIBLE THAT THE BUYER W OULD OFFER A UNIFORM RATE WHEN THE GOLD JEWELLERY HAS VARYING PURITY OF GOLD. AS PER CIT(A), THE PURPORTED PURCHASE INVOICE OF BISHAN CHAND MUKESH KUMAR REFER S TO 1 KUNDAN SET COMPRISING OF 6 PIECES AND HAVING NET WEIGHT OF 520 GM WHEREAS THE VALUATION REPORT CLEARLY REFERS TO 2 GOLD KUNDAN SETS COMPRIS ING OF 6 PIECES AND HAVING NET WEIGHT OF 520 GM. UNDER THESE CIRCUMSTANCES, IT CA NNOT BE SAID THAT THE JEWELLERY CLAIMED TO BE SOLD TO BISHAN CHAND MUKESH KUMAR WAS THE VERY SAME ONE AS DESCRIBED IN THE VALUATION REPORT. ON THE BASIS OF EVIDENCE PRODUCED BEFORE THE LOWER AUTHORITIES, THE CIT(A) FURTHER NOTED THAT TH E MOST STARK AND WEIGHTY EVIDENCE AGAINST THE ASSESSEE IS WITH REGARD TO THE DIAMOND CONTENT IN THE JEWELLERY DESCRIBED AT SERIAL NUMBER 12 IN THE VALU ATION REPORT. IN THE VALUATION REPORT THERE IS MENTION OF GROSS WEIGHT (390.06 GMS ) AND NET WEIGHT (360 GMS) OF GOLD. THERE IS NO VALUATION OF DIAMOND AT ALL AND THE JEWELLERY IS VALUED ONLY ON THE BASIS OF THE GOLD CONTENT AT RS.1,91,153/- AS O N 1.4.1987. HOWEVER, IN THE PURPORTED PURCHASE INVOICE OF BISHAN CHAND MUKESH K UMAR, APART FROM THE MENTION OF THE GROSS WEIGHT AND NET WEIGHT OF GOLD (SAME AS THAT REFLECTED IN THE VALUATION REPORT), DIAMOND CONTENT IS STATED TO BE AT 6.01 CARAT AND THE RATE OF RS.1,26,000/CARAT IS APPLIED TO VALUE THE DIAMOND A T RS.7,57,260. THE COMPLETE ABSENCE OF MENTION OF DIAMOND IN THE VALUATION REPO RT AND ITS CLEAR MENTION IN THE ITA-1106/D/2009 4 PURPORTED PURCHASE INVOICE OF BISHAN CHAND MUKESH K UMAR CLEARLY ESTABLISHES THE FALSITY OF THE CLAIM OF THE ASSESSEE. 4. IN VIEW OF THE ABOVE FINDINGS, THE CIT(A) REACHE D TO THE CONCLUSION THAT THE ITEMS PURPORTED TO BE SOLD TO BISHAN CHAND MUKESH K UMAR WERE NOT THE VERY SAME ITEMS THAT ARE MENTIONED IN THE VALUATION REPO RT OF VIJAY KUMAR GUPTA. THE PURPORTED SALE OF JEWELLERY REMAINS UNEXPLAINED AS THE DISCREPANCIES DISCUSSED ABOVE ARE SIGNIFICANT ENOUGH TO CONCLUDE THAT THE S O CALLED SALE TRANSACTIONS CLAIMED BY THE ASSESSEE WERE NOT GENUINE. 5. AGGRIEVED BY THE ABOVE ORDER OF THE CIT(A), THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. AT THE OUTSET, LEARNED AR RELIED ON THE ORDER OF ITAT SPECIAL BENCH IN THE CASE OF TEJINDER SINGH, HUF, ORDER DAT ED 25.7.2008 AND ARGUED THAT ISSUE IS SQUARELY COVERED BY THE DECISION OF THE SP ECIAL BENCH. 6. ON THE OTHER HAND, LEARNED DR RELIED ON THE OBSE RVATION OF THE AO AS WELL AS THE FINDINGS RECORDED BY THE CIT(A) WITH REGARD TO DISCREPANCY IN THE JEWELLERY ITEM DISCLOSED IN THE VDIS VIS--VIS SOLD TO BISHAN CHAND MUKESH KUMAR AND STATED THAT INSPITE OF GIVING THE OPPORTUNITIES, TH E ASSESSEE COULD NOT EXPLAIN AND RECONCILE THESE DISCREPANCIES. 7. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND FOU ND THAT ISSUE WITH REGARD TO CAPITAL GAIN ON SALE OF JEWELLERY CLAIMED TO HAV E BEEN SOLD TO BISHAN CHAND MUKESH KUMAR WAS DISCUSSED IN DETAIL BY THE ITAT SP ECIAL BENCH IN THE CASE OF TEJINDER SINGH, HUF (SUPRA). WE FOUND THAT IN THE INSTANT CASE BEFORE US, THE REVENUE AUTHORITIES NOT ONLY ALLEGED THE TRANSACTIO N OF SALE AS BOGUS, BUT THE CIT(A) ON EXAMINATION OF VARIOUS DOCUMENTS PRODUCED BEFORE HER RECORDED A CATEGORICAL FINDING WITH REGARD TO ITEMS ALLEGED TO BE SOLD TO BISHAN CHAND MUKESH KUMAR VIS--VIS ITEMS DECLARED UNDER THE VDI S SCHEME AND FOUND THAT ITEMS PURPORTED TO BE SOLD TO BISHAN CHAND MUKESH K UMAR WERE NOT THE SAME ITA-1106/D/2009 5 ITEMS WHICH WERE MENTIONED IN THE VALUATION REPORT OF SHRI VIJAY KUMAR GUPTA AS SUBMITTED BY THE ASSESSEE BEFORE THE LOWER AUTHORIT IES. SHE FOUND THAT THERE WAS DIAMOND CONTENT IN THE JEWELLERY DESCRIBED AT SERIA L NUMBER 12 OF THE VALUATION REPORT WHEREAS IN THE VALUATION REPORT, THERE IS ON LY MENTION OF THE WEIGHT OF GOLD AND THERE WAS NO VALUATION OF DIAMOND AT ALL. A FI NDING WAS ALSO RECORDED BY THE CIT(A) TO THE EFFECT THAT THERE WAS AN OBVIOUS IRRE CONCILABLE MISMATCH IN DESCRIPTION OF THE JEWELLERY IN THE CERTIFICATE U/S 68(2) OF THE VDIS AND THE VALUATION REPORT OF VIJAY KUMAR GUPTA. HOWEVER, TH E ASSESSEE COULD NOT RECONCILE ABOVE MENTIONED INCONSISTENCIES BEFORE TH E LOWER AUTHORITIES. 8. ITAT SPECIAL BENCH HAS CONSIDERED SIMILAR ISSUE RELATING TO GENUINENESS OF SALE OF JEWELLERY CLAIMED TO HAVE BEEN MADE TO M/S BISHAN CHAND MUKESH KUMAR IN THE CASE OF TEJINDER SINGH, HUF AND THE APPEAL F ILED IN THE SAID CASE HAS BEEN DISPOSED OF BY THE SPECIAL BENCH OF ITAT AT DELHI V IDE AN ORDER DATED 25.7.2008 PASSED IN IT(SS) A.NO.404/DEL/2003 AND OTHERS WHERE IN THE SAID ISSUE HAS BEEN DECIDED BY THE TRIBUNAL IN PARAGRAPH NO.166 AS UNDE R:- 166. AFTER HEARING THE ARGUMENTS OF THE LEARNED RE PRESENTATIVES OF ALL THE SIDES IN THESE CASES, WE FELT THAT IT WOULD BE APPROPRIATE TO CONSIDER AND DECIDE THE APPEALS FILED IN THE CASE O F M/S BISHAN CHAND MUKESH KUMAR AND SHRI MANOJ AGGARWAL/BEMCO JE WELLERS FIRST AS THE ISSUE RELATING TO GENUINENESS OF THE T RANSACTIONS OF PURCHASE AND SALE OF JEWELLERY IN THE SAID CASES HA VE BEEN INVESTIGATED IN DETAIL AND THE DECISION THEREON WIL L HAVE A DIRECT BEARING ON THE ULTIMATE FATE OF THE CASE OF THE ASS ESSEE I.E. TEJINDER SINGH, HUF. ACCORDINGLY, THE APPEALS FILED IN THE CASE OF M/S BISHAN CHAND MUKESH KUMAR HAVE ALREADY BEEN DISPOSE D OF BY US IN THE FOREGOING PORTION OF THIS ORDER WHEREIN THE ASSESSMENT MADE U/S 158BC READ WITH SECTION 158BD HAS BEEN HELD TO BE BAD IN LAW ON THE GROUNDS AND FOR THE REASONS SET OUT THEREIN. CONSEQUENTLY, THE SAID ASSESSMENT MADE IN THE CASE OF M/S BISHAN CHAN D MUKESH KUMAR HAS BEEN QUASHED BY US HOLDING THE SAME TO BE INVALID AND KEEPING IN VIEW THIS DECISION ON THE PRELIMINARY LE GAL ISSUES, WE HAVE REFRAINED OURSELVES FROM CONSIDERING AND DECID ING THE OTHER ISSUES INVOLVED IN THE SAID CASE ON MERITS INCLUDIN G THE ISSUE RELATING TO GENUINENESS OF THE TRANSACTIONS OF PURCHASE AND SALE OF JEWELLERY. ITA-1106/D/2009 6 ASSUMING THE POSSIBILITY OF SUCH AN EVENTUALITY AND KEEPING IN VIEW THAT THE MATERIAL COLLECTED DURING THE COURSE OF AS SESSMENT PROCEEDINGS IN THE CASE OF M/S BISHAN CHAND MUKESH KUMAR, WHICH HAS ALREADY BEEN FILED AND ADMITTED AS ADDITIONAL E VIDENCE IN THE CASE OF TEJINDER SINGH, HUF, CAN STILL BE UTILIZED, SHRI S.D.KAPILA HAS URGED THAT THE CASE OF SHRI TEJINDER SINGH SHOU LD BE RESTORED TO THE FILE OF THE ASSESSING OFFICER TO CONSIDER AND D ECIDE THE SAME AFRESH IN THE LIGHT OF THE SAID ADDITIONAL EVIDENCE . HE HAS SUBMITTED THAT THIS WILL ALSO FACILITATE IN GIVING AN OPPORTU NITY TO THE ASSESSEE TO CROSS-EXAMINE THE DEPONENTS WHOSE STATEMENTS HAVE B EEN SOUGHT TO BE RELIED UPON BY THE DEPARTMENT AND ALSO TO RELY U PON THE LETTERS/AFFIDAVITS OF THE SAID DEPONENTS WHICH HAVE BEEN FILED BY HIM AND ADMITTED BY THE TRIBUNAL AS ADDITIONAL EVIDENCE . HE HAS CONTENDED THAT THIS WILL ENABLE THE ASSESSING OFFIC ER TO REACH A PROPER CONCLUSION AFTER TAKING INTO CONSIDERATION T HIS ENTIRE EVIDENCE WHICH HAS BEEN GATHERED AFTER THE COMPLETION OF ASS ESSMENT IN THE CASE OF TEJINDER SINGH, HUF AND WHICH IS RELEVANT T O DECIDE THE ISSUES INVOLVED IN THE SAID CASE. ALTHOUGH THIS PL EA OF SHRI S.D.KAPILA SOUNDS TO BE LOGICAL AND LEGALLY TENABLE , WE FIND IT DIFFICULT TO ACCEPT THE SAME IN VIEW OF OUR DECISIO N RENDERED IN THE CASES OF SHRI MANOJ AGGARWAL AND BEMCO IN THE FOREG OING PORTION OF THIS ORDER. IT IS NO DOUBT TRUE THAT THE JEWELL ERY BY TEJINDER SINGH, HUF WAS SOLD TO M/S BISHAN CHAND MUKESH KUMAR AND T HE ISSUE ABOUT THE GENUINENESS OF THE TRANSACTIONS OF PURCHA SE AND SALE OF JEWELLERY BY M/S BISHAN CHAND MUKESH KUMAR INCLUDIN G THE PURCHASE OF JEWELLERY FROM THE ASSESSEE HAS NOT BEE N CONSIDERED AND DECIDED BY US ON MERITS. HOWEVER, A SIMILAR ISSUE INVOLVED IN THE CASE OF BEMCO/MANOJ AGGARWAL HAS BEEN CONSIDERED AN D DECIDED BY US ON MERITS. IN THE SAID CASES, THE FACTS INVOLVE D WERE ALMOST SIMILAR TO THE FACTS INVOLVED IN THE CASE OF M/S BI SHAN CHAND MUKESH KUMAR INASMUCH AS THE TRANSACTIONS RELATING TO PURCHASE AND SALE OF JEWELLERY WERE HELD TO BE BOGUS BY THE DEPARTMENT ALLEGING THAT SUCH TRANSACTIONS WERE ENTERED INTO I N ORDER TO GIVE ACCOMMODATION ENTRIES ON COMMISSION BASIS. THIS AL LEGATION WAS BASED ON THE SIMILAR TYPE AND NATURE OF EVIDENCE CO LLECTED BY THE DEPARTMENT AND THE MODUS OPERANDI ALLEGEDLY FOLLOWED BY BEMCO/MANOJ AGGARWAL WAS THE SAME AS ALLEGED TO BE FOLLOWED BY M/S BISHAN CHAND MUKESH KUMAR WHILE GIVING ACCOMMOD ATION ENTRIES IN THE FORM OF BOGUS SALES ENTRIES OF JEWEL LERY. THE CASE SOUGHT TO BE MADE OUT BY THE DEPARTMENT ABOUT THE A LLEGED BOGUS PURCHASE AND SALE OF JEWELLERY TRANSACTIONS ON THE BASIS OF SIMILAR NATURE OF EVIDENCE HAS BEEN EXAMINED BY US IN DETAI L AND ON SUCH EXAMINATION, WE HAVE HELD THAT THE EVIDENCE COLLECT ED BY THE REVENUE AUTHORITIES WAS NOT SUFFICIENT TO ESTABLISH THEIR STAND THAT THE ITA-1106/D/2009 7 JEWELLERY TRANSACTIONS CARRIED ON BY BEMCO JEWELLER S PVT.LTD. WERE ONLY PAPER TRANSACTIONS OR BOGUS AND THE SAME WERE PUT THROUGH BY ACCOMMODATION ENTRIES IN ORDER TO EARN COMMISSION I NCOME THEREFROM. WE HAVE FOUND IT DIFFICULT TO REJECT THE ASSESSEES PLEA ABOUT THE GENUINENESS OF THE JEWELLERY TRANSACTIONS AS OPPOSED TO THE NORMAL COURSE OF HUMAN CONDUCT EVEN APPLYING THE PR INCIPLES LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASES OF D URGA PRASAD MORE (SUPRA) AND SUMATI DAYAL (SUPRA). WE HAVE ALS O FOUND THAT THE CIRCUMSTANCES SURROUNDING THE CASE WERE NOT STRONG ENOUGH TO HOLD THE CLAIM OF THE ASSESSEE ABOUT GENUINENESS OF THE JEWELLERY TRANSACTIONS AS TOTALLY UNBELIEVABLE OR OUTRAGEOUS. WE HAVE ALSO FOUND THAT NO EVIDENCE OF ANY CONSEQUENCE WAS UNEAR THED DURING THE COURSE OF SEARCH TO DIRECTLY SHOW THAT THE JEWELLER Y BUSINESS WAS BOGUS AND THAT IT WAS ONLY ACCOMMODATION ENTRY BUSI NESS. ON THE OTHER HAND, THE EVIDENCE BROUGHT ON RECORD BY THE A SSESSEE ESPECIALLY THE EVIDENCE IN THE FORM OF SALES TAX AS SESSMENT ORDER WHEREIN THE TRANSACTIONS OF PURCHASE AND SALE OF JE WELLERY WERE ACCEPTED BY THE SALES-TAX AUTHORITIES WAS FOUND TO BE RELIABLE BY US TO SUPPORT THE CASE OF THE ASSESSEE THAT THE RELEVA NT TRANSACTIONS OF PURCHASE AND SALE OF JEWELLERY WERE GENUINE. AS TH E ISSUE INVOLVED IN THE CASE OF BEMCO/MANOJ AGGARWAL AS WELL AS ALL THE MATERIAL FACTS RELEVANT THERETO INCLUDING THE EVIDENCE BROUG HT ON RECORD ARE SIMILAR TO THE CASE OF M/S BISHAN CHAND MUKESH KUMA R, WE ARE OF THE VIEW THAT THE DECISION RENDERED IN THE CASE OF BEMCO/MANOJ KUMAR ON THE SAID ISSUE IS APPLICABLE EVEN IN THE C ASE OF M/S BISHAN CHAND MUKESH KUMAR WITH EQUAL FORCE AND THIS BEING SO, NO MEANINGFUL PURPOSE WILL BE SERVED BY SENDING THE MA TTER BACK TO THE AO FOR RECONSIDERATION AND RE-DECISION MERELY BECAU SE THE ISSUE HAS NOT BEEN DECIDED ON MERITS IN THE CASE OF M/S BISHA N CHAND MUKESH KUMAR. IN OUR OPINION, THIS EXERCISE WOULD PROVE T O BE MERELY ACADEMIC AND IT WOULD RESULT ONLY IN MULTIPLICITY O F LITIGATION. IN THAT VIEW OF THE MATTER AND KEEPING IN VIEW THE REA SONS GIVEN ABOVE, WE DO NOT FIND ANY JUSTIFIABLE REASON TO SEND THIS MATTER TO THE ASSESSING OFFICER FOR RECONSIDERATION AS SOUGHT BY SHRI KAPILA AND FOLLOWING OUR CONCLUSION DRAWN IN THE CASE OF BEMCO /MANOJ AGGARWAL, WE HOLD THAT THE TRANSACTION RELATING TO SALE OF JEWELLERY IN THE CASE OF THE PRESENT ASSESSEE I.E. TEJINDER SINGH, HUF IS GENUINE . ACCORDINGLY, WE DELETE THE ADDITION MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT (APPEALS ) UNDER SECTION 68 AND ALLOW THIS APPEAL OF THE ASSESSEE. (EMPHASIS IN BOLD LETTERS SUPPLIED BY US). ITA-1106/D/2009 8 9. IN THE INSTANT CASE BEFORE US, EVEN THOUGH SALE OF JEWELLERY WAS TO BISHAN CHAND MUKESH KUMAR, BUT VARIOUS DISCREPANCIES HAVE BEEN NOTED BY THE CIT(A) AND DETAILED FINDING HAS BEEN RECORDED AT PARA 7.1 TO 7.4.16. THESE FINDINGS INDICATED THAT THE JEWELLERY ALLEGED TO BE SOLD TO BISHAN CHAND MUKESH KUMAR WAS NOT THE SAME AS VALUED BY ASSESSEES VALUER SHR I VIJAY KUMAR GUPTA AND DECLARED UNDER VDIS DISCLOSURE. IN THE INTEREST OF JUSTICE AND FAIRPLAY, WE RESTORE THIS APPEAL TO THE FILE OF THE AO AND THE ASSESSEE IS DIRECTED TO FIRST RECONCILE THE INCONSISTENCIES POINTED OUT BY THE CIT(A) IN PARA 7 , AND THE AO IS DIRECTED TO DECIDE THE APPEAL AFRESH AS PER THE FINDING RECORDE D BY ITAT SPECIAL BENCH AS REPRODUCED BY US IN PARA 8 ABOVE. WE DIRECT ACCORD INGLY, 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED IN PART. DECISION PRONOUNCED IN THE OPEN COURT ON 31 ST JULY, 2009. SD/- SD/- (I.P.BANSAL) (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 31.07.2009. VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT DEPUTY REGISTRAR