DCIT, Cir 20(1), V. Sarla Jain,

ITA 1376/DEL/2007

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3369 (ITAT-DELHI)
• Duration Of Justice: 10 year(s) 10 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2018
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 20-07-2017
• Assessment Year: 1998-1999
• Appeal Filed On: 20-03-2007
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ATIQ AHMAD LD
• Keywords: Income from undisclosed sources; Search and seizure; Principle of natural justice; Opportunity of cross examination; Valuation report; Validity of assessment; Accommodation entries; Procedural lapse; Block assessment; Onus to prove; Documents seized
• Section: 69C; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: BENCH F NEW DELHI BEFORE SRI R.K.PANDA, ACCOUNTANT MEMBER AND SMT. BEENA A PILLAI, JUDICIAL MEMBER ITA NO. 1376 /DEL/20 07 A.Y. 1998 - 99 DY.CIT, CIRCLE 20(1) VS. SMT.SARLA JAIN NEW DELHI 31 - B/5, RAJPUR ROAD CIVIL LINES, DELHI CROSS OBJECTION 181/DEL/07 (IN ITA 1376/DEL/2007) A.Y. 1998 - 99 SMT. SARLA JAIN VS. DY.CIT, CIRCLE 20(1) DELHI NEW DELHI (APPELLANT) (RESPONDENT) REVENUE BY : SH. ATIQ AHMAD, LD.SR.DR ASSESSEE BY: SRI PRATAP GUPTA, CA DATE OF HEARING: 0 6 .02.2018 DATE OF PRONOUNCEMENT : ORDER PER BEENA A PILLAI, JUDICIAL MEMBER T HE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE AGAINST ORDER DATED 11/12/06 PASSED BY LD. CIT (A) - 27, NEW DELHI FOR ASSESSMENT YEAR 1998 - 99 ON THE FOLLOWING GRO UNDS OF APPEAL: 1. THE LD.CIT(A) ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.57,95,097/ - AS INCOME FROM UNDISCLOSED SOURCES. 2. THE LD.CIT(A) ERRED IN LAW IN HOLDING THAT SINCE ASSESSEE MADE A DECLARATION UNDER VDIS, 1997 AND PAID THE TAX ACCORDINGLY AND A CERTIFICATE WAS ISSUED BY THE AUTHORISED AUTHORITY, ASSESSING OFFICER (A.O.) WAS WRONG IN TREATING THE ALLEGED SALE OF JEWEL LERY FOR RS.57,95,097/ - BOGUS WHEN THE CERTIFICATE ISSUED BY THE ITA 1376/DEL/2007 & C.O. 181/DEL/2007 DCIT VS. SARLA JAIN, DELHI A.Y. 1998 - 99 2 COMMISSIONER WAS NOT DECLARED TO BE TESTIMONY OR A CONCLUSIVE EVIDENCE OF THE FACT THAT THE ASSESSEE DID IN FACTS POSSESSED THE SAID JEWELLERY. 3. THE LD.CIT(A) FAILED IN HIS STATUTORY DUTY I N NOT REMOVING THE PROCEDURAL DEFECT OF AFFORDING THE OPPORTUNITY OF CROSS EXAMINATION OF MANOJ KUMAR AGGARWAL AND BISHAN CHAND AGGARWAL, AS REQUESTED BY THE ASSESSEE BY INVOKING HIS POWERS IN THIS REGARD, AND RENDER JUSTICE, WHEN THE SAID OMISSION OF NOT AFFORDING OPPORTUNITY WAS ONLY A PROCEDURAL IRREGULARITY AND WAS CURABLE BY HIM. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD.CIT(A ) ERRED IN DELETING THE ADDITION OF RS.57,95,097/ - UNDER SECTION 68 OF THE INCOME TAX ACT ON THE GROUND THAT THE APP ELLANT HAD DISCHARGED HIS BURDEN OF PROOF U/S 68 WITHOUT APPRECIATING THE FACTS THAT THE PAPER TRAIL COMPRISED OF DOCUMENTS, WHICH WERE GENERATED BY THE PARTIES CONCERNED THEMSELVES, WAS ONLY SELF SERVING EVIDENCE. MOREOVER, THE MERE FACT THAT PAYMENTS WE RE RECEIVED BY CHEQUE DOES NOT ESTABLISH THE NATURE OF RECEIPT UNDER CONSIDERATION, AND THEREFORE, IT WAS PERTINENT TO IGNORE THE OBVIOUS AND TAKE INTO CONSIDERATION THE CIRCUMSTANTIAL EVIDENCE, WHICH IN THIS CASE WERE THE FINDINGS GIVEN BY THE DCIT, C.C.3 , NEW DELHI IN HIS BLOCK ASSESSMENT ORDER IN THE CASE OF BISHAN CHAND MUKESH KUMAR. 5. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER ALL OR ANY OF THE ABOVE GROUNDS OF APPEAL. 2. BRIEF FACTS OF THE CASE ARE AS UNDER: D URING THE RELEVANT YEAR UNDER CON SIDERATION ASSESSEE HAS CLAIMED TO HAVE SOLD JEWELLERY ALREADY DECLARED UNDER VDI SCHEME , 1997 FOR A TOTAL CONSIDERATION OF RS.57,95,097/ - TO M/S ITA 1376/DEL/2007 & C.O. 181/DEL/2007 DCIT VS. SARLA JAIN, DELHI A.Y. 1998 - 99 3 BISHAN CHAND MUKESH KUMAR, AND THE SAID SALE HAS BEEN SUBMITTED TO HAVE BEEN DULY DISCLOSED BY HER IN THE RETU RN OF INCOME FILED FOR THE YEAR UNDER CONSIDERATION. 2.1. A SEARCH AND SEIZURE OPERATION WAS UNDERTAKEN IN THE CASE OF M/S BEM C O JEWELLERS PVT.LTD., WHERE SH. MANOJ AGARWAL AND SH. BISHAN CHAND WERE THE D IRECTORS. ON THE BASIS OF THE DOCUMENTS SEIZED DUR ING THE COURSE OF SEARCH OP ERATION, PROCEEDINGS UNDER SECTION 158 BD READ WITH SECTION 158 BC WERE INITIATED IN THE CASE OF M/S BISHAN CHAND MUKESH KUMAR. AS ASSESSEE WAS ONE SUCH PERSON WHO SOLD JEWELL E RY TO M/S BISHAN CHAND MUKESH KUMAR , IT WAS HELD THAT THEY WERE ACCOMMODATION ENTRIES GIVEN BY THE SAID F I RM IN THE FORM OF BOGUS SALE OF JEWELLERY , AND THE INFORMATION WAS COMMUNICATED TO ASSESSING OFFICER HAVING JURISDICTION OVER ASSESSEE S CASE. ON THE BASIS OF THE SAID INFORMATION , REASSESSMENT PR OCEEDINGS WERE INITIATED BY LD. AO BY ISSUING NOTICE UNDER SECTION 148. THE ASSESSING OFFICER RELYING ON THE BLOCK ASSESSMENT ORDER IN THE CASE OF M / S BISHAN CH AND MUKESH KUMAR HELD THAT THE SALE OF JEWELLERY SHOWN BY ASSESSEE TO THE SAID F I RM TO BE BOGUS AND CONSIDERED THE ENTIRE SALE PROCEEDS OF RS. 57,95,097/ - AS INCOME FROM UNDISCLOSED SOURCES , BEING AMOUNT PAID AND OBTAINED AN ACCOMMODATION ENTRY ON THE ALLEGED SALE OF JEWELLERY. 2.2. AGGRIEVED BY THE ASSESSMENT ORDER, ASSESSEE PREFERRED APPEA L BEFORE LD. CIT(A) W HO HELD REASSESSMENT TO BE VALID , HOWEVER , DELETED THE ADDITION MADE BY LD. AO. 2.3. AGGRIEVED BY THE ORDER OF LD.CIT(A) REVENUE PREFERRED APPEAL BEFORE THIS T RIBUNAL WHICH WAS DISMISSED AND THE C ROSS ITA 1376/DEL/2007 & C.O. 181/DEL/2007 DCIT VS. SARLA JAIN, DELHI A.Y. 1998 - 99 4 O BJECTION RAISED BY THE ASSES SEE CHALLENGING THE VALIDITY OF ASSESSMENT CONSEQUENTIALLY BECAME INFRUCTUOUS. 2.4. AGGRIEVED BY THE ORDER OF THIS T RIBUNAL REVENUE PREFERRED APPEAL BEFORE HON BLE DELHI HIGH COURT . HON BLE HIGH COURT VIDE CONSOLIDATED ORDER DECIDED ASSESSEE S CASE IN ITA 746/10 VIDE ORDER DATED 14.03.2012 AS UNDER: THE ISSUE RAISED IN THESE APPEALS PERTAIN TO THE ALLEGED BOGUS SALE OF JEWELLERY BY THE ASSESSEES TO EITHER BISHAN CHAND MUKESH KUM AR 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 25.7.2008 IN IT(SS)A NO .404/DEL/2003. THOUGH WE FIND THAT IN ALMOST ALL THESE CASES THERE IS A FINDING RETURNED BY THE CIT THAT THE TRANSACTIONS WERE GENUINE, SINCE THE REVENUE HAD CHALLENGED THOSE FINDINGS, IT WAS INCUMBENT UPON THE TRIBUNAL TO INDEPENDENTLY EXAMINE EACH OF TH E CASES AND RETURN A SPECIFIC FINDING AS TO WHETHER THERE WAS A GENUINE TRANSACTION OF SALE OF JEWELLERY BY THE ASSESSEES TO BISHAN CHAND MUKESH KUMAR/BEMCO JEWELLERS. SINCE THE TRIBUNAL HAS NOT DONE THAT, WE ARE SETTING ASIDE THE IMPUGNED ORDERS AND ARE R EMITTING 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 NOT. 3. WE HAVE PERU SED 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 V IDE ORDER DATED 14/03/12 ITA 1376/DEL/2007 & C.O. 181/DEL/2007 DCIT VS. SARLA JAIN, DELHI A.Y. 1998 - 99 5 PASSED IN A GROUP CASE, WHERE ITA NO. 764/2010 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 T O 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 DEPO SITED 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 DECLA RED 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 JEWEL LERY 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 6 8(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 ITA 1376/DEL/2007 & C.O. 181/DEL/2007 DCIT VS. SARLA JAIN, DELHI A.Y. 1998 - 99 6 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 JEWELLER Y 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 A PPELLANT FROM M / S BISHAN CHAND MUKESH KUMAR. LATER ON, THE A SSESSING OFFICER MADE ADDITION OF THE ABOVE AMOUNT AS D I SCLOSED SOURCES ON THE BASIS OF THE ASSESSMENT IN THE CASE OF M/S BISHAN CHAND MUKESH KUMAR BASED ON STATEMENT OF SH. MANOJ A GGARWAL THAT H E 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 OBSE RVED 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. T HE 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 W ITHOUT 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 ENTIR E 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 MATER IAL 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 ITA 1376/DEL/2007 & C.O. 181/DEL/2007 DCIT VS. SARLA JAIN, DELHI A.Y. 1998 - 99 7 RECORD TO SHOW THAT THE APPELLANT PAI D 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 DU RING THE COURSE OF ASSESSMENT PROCEEDINGS DESPITE HAVING MADE A REQUEST IN WRITING IN T HIS 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 C HAND 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 H AS 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 ME RE 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 APPELLAN T, I FIND NO JUS T IFICATION ON THE PART OF THE ASSESSING OFFICER TO HOLD THAT THE TRANSAC TION 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 TOTO ON MERITS AS WELL. 8.5. I T 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 A T, MUMBAI BENCH, IN THE CASE OF ITO VS SMT. JYOTI PRAKASH CHHABRIA & ORS. (MUMBAI) IN ITA NOS. 1592, 1593, 1601, 1602 & 1603/MUM/2004: ASST. YRS. 1998 - 99 & 1999 - 2000, (2006) 99 TTJ (MUMBAI) 351, CONFIRMED THE ORDER OF THE CIT(A) ITA 1376/DEL/2007 & C.O. 181/DEL/2007 DCIT VS. SARLA JAIN, DELHI A.Y. 1998 - 99 8 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 ITA NO. 1054/KOL / 2004: 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 A CIT 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 H O N'BLE TRI BUNAL. 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 W AS NOT JUSTIFIED IN TREATING THE SALE OF JEWELLERY AS BOGUS. THE ADDITION OF RS. 57,95,097 / - MADE ON THIS COUNT IS, A CCORDINGLY, HEREBY DELETED. 9. 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 ACCOMM O DATION ENTRY. HOWEVER, SINCE THE ENTIRE ADDITION STANDS DELETED VIDE PARA 8 . 6 , S UPRA, THE LONG TERM CAPITAL LOSS AS DECLARED WILL HAVE TO BE ALLOWED IN THE HANDS OF THE ASSESSEE. THE ASSESSING OFFICER I S, AC CORDINGLY, 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. 4. ON THE OUTSET LD. AR PLACED ON RECORD THE DECISION PASSED BY HON BLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS . MOHAN LAL A AGARWAL , REPORTED IN (2013) 35 TAXMAN.COM 258 , WHEREIN LD.AR SUBMITS THAT HON BLE HIGH COURT HAS DECIDED THE ISSUE ON ITA 1376/DEL/2007 & C.O. 181/DEL/2007 DCIT VS. SARLA JAIN, DELHI A.Y. 1998 - 99 9 IDENTICAL FACTS . WE HAVE PERUSED TH E SUBMISSIONS OF LD. AR ON THE BASIS OF THE ORDER PASSED BY HON BLE ALLAHABAD HIGH COURT. 4.1. I N THE FACTS OF THE PRESENT CASE HON BLE HIGH COURT, WHILE R EMANDING THE ISSUE , DIRECTED THIS TRIBUNAL TO INDEPENDENTLY EXAMINE EACH OF THE CASE AND RETURN A SP ECIFIC FINDING , AS TO WHETHER THERE WAS A GENUINE TRANSACTION OF SALE OF JEWELL E RY BY ASSESSEE TO M/S BISHAN CHAND MUKESH KUMAR/BEMCO JEWELLERS. 4.2. THUS IT IS VERY CLEAR FROM THE SPECIFIC DIRECTION BY HON BLE HIGH COURT THAT , JEWELL E RY DECLARED BY ASSESSEE UNDER VOLUNTARY DISCLOSURE OF INCOME SCHEME ( VDI S) HAS NOT BE EN DOUBTED , HOWEVER THE DIRECTION IS IN RESPECT OF ALLEGED SALE OF J EWELL E RY 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 T RIBUNAL 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 THE SE 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 DIRECT ION 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. ITA 1376/DEL/2007 & C.O. 181/DEL/2007 DCIT VS. SARLA JAIN, DELHI A.Y. 1998 - 99 10 BISHAN CHAND MUKESH KUMA R , 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 R ECEIVED BY HER ON ACCOUNT OF SALE OF JEWELLERY . THE BUYER BEING BISHAN CHAND MUKESH KUMAR I S 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 VERIFY 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. 4. 6 . C.O. 187/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, NO R HAS HON BLE HIGH COURT DIRECTED THIS T RIBUNAL TO DECIDE THE LEGAL ISSUE THAT WAS TAKEN BY ASSESSEE BEFORE THIS T RIBUNAL. ACCORDINGLY IN OUR CONSIDERED OPINION THE C ROSS O BJECTION RAISE D BY ASSESSEE AT THIS JUNCTURE AS ON T ODAY DOES NOT ARISE OUT OF THE DIRECTIONS PASSED BY HON BLE HIGH COURT V IDE ORDER DATED 14/03/12 IN A GROUP OF CASES WHEREIN ASSESSEE HAS BEEN ONE OF ITA 1376/DEL/2007 & C.O. 181/DEL/2007 DCIT VS. SARLA JAIN, DELHI A.Y. 1998 - 99 11 THE RESPONDENT IN ITA NO. 764/2010. ACCORDINGLY WE DISMISS THE C RO SS O BJECTION 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. 5. IN THE RESULT APPEAL FILED BY THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES AND THE C ROSS O BJECTION ALLEGED TO HAVE BEEN REMANDED BY HON BLE HIGH COURT STANDS DISMISSED AS IT DOES NOT ARISE OUT OF THE SAME. ORDER PRONOUNCED IN THE OPEN COURT ON 1 9 . 0 2 . 2 0 1 8 . S D / - S D / - ( R.K.PANDA ) (BEENA A PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 1 9 T H FEB., 2018 * M V COPY FORWARDED TO: - 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR, ITAT - TRUE COPY - BY ORDER, ASSISTANT REGISTRAR ITAT DELHI BENCHES ITA 1376/DEL/2007 & C.O. 181/DEL/2007 DCIT VS. SARLA JAIN, DELHI A.Y. 1998 - 99 12 S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON DRAGON SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR. PS/PS 6 KEPT FOR PRONOUNCEMENT SR. PS/PS 7 FILE SENT TO BENCH CLERK SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER