Smt. Raj Kumari, Hamirpur V. ITO, Hamirpur

ITA 1371/CHANDI/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0542 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 11 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 1998-1999
• Appeal Filed On: 14-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ZENIA HANDA
• Keywords: Reopening of assessment
• Section: 147; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH SMC CHANDIGARH , ! BEFORE: SMT. DIVA SINGH, JM ./ ITA NO. 1371/CHD/2016 / ASSESSMENT YEAR : 1998-99 SMT. RAJ KUMARI, W/O SHRI JOGINDER PAL, VPO-CHOWKI JAMWALAN, TEHSIL & DISTT. HAMIRPUR. VS THE ITO, HAMIRPUR (HP). ./PAN NO: AAPYK3895R /APPELLANT /RESPONDENT /ASSESSEE BY : SHRI SUDHIR SEHGAL / REVENUE BY : SMT. ZENIA HANDA, SR.DR ! ' # /DATE OF HEARING : 20.11.2018 $%&' # /DATE OF PRONOUNCEMENT : 30.11.2018 '# /ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DATED 08.09.2016 OF CIT(A), PALAMPUR PERTAINI NG TO 1998-99 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS : 1. THAT THE WORTHY CIT (A) HAS ERRED IN HOLDING THAT B ELIEF OF THE LD. ASSESSING OFFICER WAS BASED ON THE SPECIFIC INFORMA TION REGARDING ALLEGED ACCOMMODATION ENTRY ARRANGED BY THE APPELLANT BY PA YING 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 UPHEL D. 2. A) THAT THE WORTHY CIT (A) HAS ERRED IN NOT CON SIDERING THAT IN THE EARLIER ORDER, DATED 05.04.2010 IN THE CASE OF ASSESSEE FOR THIS Y EAR, THE WORTHY CIT (A) ON PAGE 4, PARA 6.21 OF HIS ORDER HAS HELD THAT REOPEN ING 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 AVAIL ABLE WITH THE DEPARTMENT TO PROVE THAT INCOME HAD ESCAPED ASSESSM ENT FOR THE IMPUGNED ASSESSMENT YEAR REOPENING OF ASSESSMENT WA S UNJUSTIFIED AND UNTENABLE.' B). THAT THE WORTHY CIT (A), THEREFORE, BY GIVIN G THE INSTANCE OF THE DECISION OF I). HON'BLE ITAT, JURISDICTIONAL 'B' BENCH IN T HE CASE OF ITO VS.SMT PAYAL GUPTA (2008) 114 TTJ 426 AND II). IT/27/SML/2006-07, DATED 02.06.2009 OF SH. KAM AL KISHORE PROP. M/S MALHOTRA WORKSHOP, DOONGA BAZAR, KANGRA ( H.P.), DA TED 02.06.2009. HAS HELD THAT REOPENING OF ASSESSMENT WAS UNJUSTIFIED AND UNTENABLE. 3. NOTWITHSTANDING THE ABOVE SAID FACTS, THE WO RTHY CIT (A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 7,78,892/- MADE BY T HE ASSESSING OFFICER U/S 69A OF THE INCOME TAX ACT BY HOLDING THAT IN THE CASE OF A SSESSEE, NO ACTUAL SALE/PURCHASE OF JEWELLERY HAD TAKEN PLACE AND INST EAD THE ASSESSEE DEPOSITED RS. 7,63,620/- IN THE BANK ACCOUNT OF M/S BISHAN CH AND MUKESH KUMAR SARAF, ITA 1371/CHD/2016 A.Y. 1998-99 PAGE 2 OF 2 DELHI AND HAS OBTAINED ACCOMMODATION ENTRY THROUGH BANK DRAFT OF RS. 7,63,620/- ALONGWITH COMMISSION OF RS. 15,872/- TOT ALING TO RS. 7,78,892/-/. 4. THAT THE WORTHY CIT (A) HAS ERRED IN NOT CONSIDERIN G THAT THE ASSESSEE HAS SOLD JEWELLERY WHICH WAS DECLARED UNDER THE VDI S SCHEME 1997 AND HAS PAID PROPER TAXES. IT WAS FURTHER SUBMITTED THA T PROPER INVOICE HAS BEEN ISSUED BY THE SAID CONCERN AND SALE CONSIDERAT ION HAS BEEN RECEIVED THROUGH BANK DRAFT. 5. THAT THE SUBMISSION MADE DURING THE COURSE OF HEARI NG HAS NOT BEEN CONSIDERED PROPERTY AND ADDITION OF RS. 7,78,892/- AS ABOVE HAS BEEN MADE AGAINST THE FACTS AND CIRCUMSTANCES OF THE CAS E . 2. THE LD. AR INVITING ATTENTION TO THE RECORD SUBM ITTED 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 BOGU S CONCERN BY THE TAX DEPARTMENT. HON'BLE SPECIAL BENCH OF THE ITAT, DELHI, ALLOWED T HE APPEAL OF THE ASSESSEE AND HELD THAT THE PARTY NAMELY M/S BISHAN CHAND MUKESH KUMAR IS G ENUINE DEALER OF JEWELER AND AS SUCH ALL TRANSACTIONS OF THE PARTIES WITH THE ABOVE PART Y WERE HELD TO BE GENUINE. HOWEVER IN AN APPEAL FILED BY THE DEPARTMENT TO THE DELHI HIGH CO URT, THE HON'BLE HIGH COURT HAD SET ASIDE THE ISSUE TO THE FILE OF THE ITAT, DELHI TO BE DECI DED 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 CO NCERN, 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 T O SUPPORT THE CLAIM THAT THE JEWELLERY WAS OWNED BY THE ASSESSEE WHICH WAS SOLD AND THE DE POSITS ARE EXPLAINABLE THEREFROM. ACCORDINGLY, IT WAS HIS LIMITED PRAYER THAT THE MAT TER 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 B EFORE THE BENCH, THE IMPUGNED ORDER IS SET ASIDE BACK TO THE FILE OF THE AO WITH THE DIREC TION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPP ORTUNITY OF BEING HEARD. 4. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30.11. 2018. SD/- ( ) (DIVA SINGH) ! /JUDICIAL MEMBER $ % %( )* +* / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT -3. ! , / CIT 4 ! , ( )/ THE CIT(A) 5. *-. / , # / , 012.3 / DR, ITAT, CHANDIGARH 6. .2 4' / GUARD FILE %( ! / BY ORDER, 5 / ASSISTANT REGISTRAR