ACIT Circle 30 (1), V. Gunvir Kumar Jain,

ITA 3679/DEL/2006

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5476 (ITAT-DELHI)
• Duration Of Justice: 11 year(s) 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 17-05-2017
• Assessment Year: 1998-1999
• Appeal Filed On: 16-11-2006
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S R SENAPATI
• Keywords: Principle of natural justice; Valuation report; Accommodation entries; Onus to prove
• Section: 69C; 147; 68; 148

Judgement Text

1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C : NEW DELHI BEFORE SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER AND SHRI K. N. CHARY, JUDICIAL MEMBER ITA NO . 3679 /DEL/20 06 A Y 1998 - 99 CROSS OBJECTION NO.120/DEL/2007 (IN ITA NO. 3679/DEL/2006) A Y 1998 - 99 APPELLANT BY : SH. S. R. SENAPATI, SR. DR RESPONDENT BY: NONE DATE OF HEARING 28 /0 3 /2018 DATE OF PRONOUNCEMENT 0 4 /0 4 /2018 O R D E R PER PRASHANT MAHARISHI, ACCOUNTANT MEMBER 1 . THIS APPEAL HAS BEEN RESTORED BACK TO ITAT BY THE HON BLE DELHI HIGH COURT VIDE ITS ORDER DATED 14.03.2012 IN ITA NO.378/2009. THE ACIT, CIRLCE 30 (1), NEW DELHI VS SH. GUNVIR KUMAR JAIN 344, CHAWRI BAZAR, DELHI (APPELLANT) (RESPONDENT) SH. GUNVIR KUMAR JAIN 344, CHAWRI BAZAR, DELHI VS ACIT, CIRLCE 30 (1), NEW DELHI (APPELLANT) (RESPONDENT) 2 DIRECTION OF THE HON BLE DELHI HIGH COURT IS THAT THE TRIBUNAL NEEDS TO CONSIDER WHETHER THERE IS GENUINE TRANSACTION OF SALE OF JEWE L LERY BY THE ASSESSEE TO M/S. BISH AN CHAND MUKESH KUMAR OR B EMCO JEWELERS OR NOT , WHEREAS THE CO HAS BEEN FILED BY THE ASSESSEE . THE FOLLOWING GROUNDS OF APPEAL ARE RAISED : I . ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE, THE LD. CIT (A) HAS ERRED IN D ELETING THE ADDITION AMOUNTING TO RS. 75,77,504/ - MADE ON ACCOUNT OF ACCOMMODATION ENTRY PROVIDED BY M/S BISHAN CHAND MUKESH KUMAR IN WHOSE CASE IT WAS CLEARLY ESTABLISHED THAT THIS FIRM HAS NOT DONE ANY PURCHASE AND SALE OF JEWELLERY BUT ISSUED CHEQUES IN LIEU OF CASH GIVEN BY THE ASSESSE E. II. ANY OTHER GROUND THAT THE APPELLANT WOULD RAISE DURING THE COURSE OF APPEAL THE AMENDING, DELETING MODIFYING OR ADDING ANY OTHER GROUND OF APPEAL. 2 . THE ASSESSEE HAS FILED A CROSS OBJECTION AND HAS RAISED THE FOLLOWING GROUNDS : 1 . ID CIT (A) IS NOT JUSTIFIED IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IN CONFIRMING THE INITIATION OF PROCEEDINGS U/S 147 OF THE I T ACT . 2 . ID CIT (A) IS NOT JUSTIFIED IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IS NOT JUSTIFIED IN CONFIRMING THE ACTION OF ASSESSING O FFICER IN INITIATION OF RE - ASSESSMENT 3 P ROCEEDINGS IN ABSENCE OF ANY TANGIBLE AND SPECIFIC MATERIAL AGAINST THE ASSESSEE UNDER THE CIRCUMSTANCES WHEN ASSESSING OFFICER HAS ADMITTED IN HIS LETTER DATED 24 - 02 - 2006 THAT NO SUC H MATERIAL AGAINST THE ASSESSEE IS ON RECORD. 3 . ID CIT (A) IS NOT JUSTIFIED IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IN CONFIRMING THE ACTION OF ASSESSING OFFICER IN INITIATION OF RE - ASSESSMENT PROCEEDINGS U /S 147 BY THE ASSESSING OFFICER AND MERELY ON THE BASIS OF A GENERAL STATEMEN T AND A CIRCULAR LETTER ISSUED BY DCIT CENTRAL CIRCLE 3, NEW DELHI. 4 . ID CIT (A) IS NOT JUSTIFIED IN LAW AND FACTS AND CIRCUMSTANCES OF THE CASE IN CONFIRMING THE PROCEEDINGS INITIATED U/S 147 OF THE I.T. ACT WITHOUT COMPLYING WITH THE PROVISIONS OF SECTION 151 OF THE I T. ACT, UNDER THE CIRCUMSTANCES WHEN NOTICE U/S 148 IS ISSUED AFTER 4 YEARS FROM THE END OF RELEVANT ASSESSMENT YEAR. 5. ASSESSEE HAS EVERY RIGHT TO ADD, DELETE, MODIFY OR ALTER ANY GROUNDS OF CROSS - OBJECTION AT THE TIME OF HEARING. 3 . THE BRIEF FACTS SHOWS THAT ASSESSEE FILED ITS RETURN OF INCOME ON 21.07.1998 AND ASSESSMENT WAS MADE U/S 143 (3) OF THE ACT ON 10.04.2000 . S UBSEQUENTLY NOTICE U/S 148 OF THE ACT DATED 30.03.2005 WAS ISSUED AS THE ASSESSING OFFICER HAS RECEIVED INFORMATION THAT APPELLANT HAS RECEIVED PAYMENT FROM M/S BISHAN CHAND MUKESH KUMAR AGAINST ALLEGED SALE OF JEWELERY OF RS. 75 , 77 , 504/ - WHICH IS NOT GENUINE . THEREFORE, ACCORDING TO THE ASSES SING OFFICER THERE IS NO REAL 4 SALE OF JEWELRY AND HENCE ADDITION WAS MADE VIDE ORDER DATED 06.03.2006 AT RS. 79 , 08 , 170/ - . THE ADDITION WAS CHALLENGED BEFORE THE LD. CIT (A) AND COORDINATE BENCH WHERE THE ABOV E ADDITION WAS DELETED. THE REVENUE CHALLENGED THE ORDER OF THE COORDINATE BENCH BEFORE THE HON BLE DELHI HIGH COURT WHO VIDE ORDER DATED 14.03.2012 H AS SET ASIDE THE MATTER BACK TO THE FILE OF THE COORDINATE BENCH. THEREFORE, THE ONLY ISSUE INVOLVED IN THIS APPEAL IS WHETHER THE JEWELLERY SOLD BY THE ASSESSEE OF RS. 75 , 77 , 504/ - AND RECEIVED CHEQUES FROM M/S. BISHAN CHAND MUKESH KUMAR AGAINST SEVERAL BILLS I S GENUINE OR NOT. 4 . THE LD. DR STATED THAT THE ISSUE IS SQUARELY COVERED BY THE ORDER OF THE COORDINATE BENCH IN CASE OF SARLA JAIN IN ITA NO. 1376 / DE L/2007 DATED 19.12.2008 WHERE IN SIMILAR DIRECTIONS WERE GIVEN BY THE HON HIGH COURT AND COORDINATE BENCH HAS PASSED THE ORDER. HE SUBMITTED THAT A CCORDING TO THAT DECISION ISSUE HAS BEEN SET ASIDE TO THE FILE OF ASSESSING OFFICER WITH DIRECTION TO AS SESSEE . HE THEREFORE, SUBMITTED THAT THE ISSUE MAY BE SET ASIDE TO THE ASSESSING OFFICER WITH SIMILAR DIRECTION. 5 . DESPITE NOTICE NONE APPEARED ON B EHALF OF THE ASSESSEE. SIMILAR IS THE CASE AFTER ISSUE HAS BEEN SET ASIDE BY COORDINATE BENCH ON ALMOST ALL OCCASIONS WHEN HEARING IS FIXED EXCEPT ON ONE OCCASION SINCE 2015 THE ASSESSEE WAS REPRESENTED. D ESPITE SERVICE OF NOTICE ON 5 EARLIER OCCASION BY REGISTERED POST , ALSO ASSESSEE IS NOT APPEARING TO REPRESENT IT IS CASE THEREFORE, WE DECIDE THE ISSUE ON THE MERITS OF THE CASE AS PER INFORMATION AVAILABLE ON RECORD. 6 . WE HAVE CAREFULLY CONSIDERED CONTENTIONS OF THE LD. DR AND ALSO CONSIDERED THE CONTENTIONS OF ASSESSEE RAISED AT VARIOUS APPELLATE FORUM EARLIER . WE HAVE ALSO CAREFULLY CONSIDERED THE DIRECTION OF THE HON BLE DELHI HIGH COURT. FURTHER COORDINATE BENCH IN CASE MS. SARLA JAIN , WHEREIN IDENTICAL DIRECTION WAS GIVEN BY HON BLE DELHI HIGH COURT , HAS DECIDED ISSUE AS UNDER : - 3. WE HAVE PERUSED THE SUBMISSIONS ADVANCED BY BOTH THE SID ES IN THE LIGHT OF THE RECORDS PLACED BEFORE US AS WELL AS THE DIRECTIONS OF HON BLE HIGH COURT VIDE ORDER DATED 14/03/12 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 TO THE MERITS OF THE CASE, IT IS VERY CLEAR FROM THE DETAILS FILED DURING THE COURSE OF THE ASSESSMENT PROCEEDI NGS 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 CERT IFICATE 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 DEPOSITED 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 DECLARED 6 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 CH AND 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 ET C. HAVE BEEN FURNISHED IN SUPPORT WHICH HAVE BEEN PLACED ON RECORD. BESIDES THE ABOVE, THE JEWELLER HIMSELF HAS ALSO CONFIRMED THE SALE OF JEWELLERY BY WAY OF AN AFFIDAVIT FILED IN SUPPORT, COPY OF WHICH HAS ALSO BEEN PLACED ON RECORD. 8.1. THERE IS NO D ISPUTE THAT THE ASSESSEE HAS MADE A DISCLOSURE UNDER VDIS, 1997. THE DECLARATION WAS ACCEPTED BY THE CIT VIDE CERTIFICATE ISSUED UNDER SECTION 68(2) OF THE VDIS, 1997. THE ASSESSEE GOT THE VALUATION DONE FROM REGISTERED VALUER AND FILED THE VALUATION REPOR T 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 CERTIFICATE H AS BEEN CANCELLED OR WITHDRAWN OR AMENDED BY THE CIT UNDER THE VDIS, 1997, THE ASSESSING OFFICER HAS ERRED IN TREATING THE SALE OF SUCH JEWELLERY 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 APPELLANT FROM M/S BISHAN CHAND MUKESH KUMAR. LATER ON, THE ASSESSING OFFICER MADE ADDITION OF THE ABOVE AMOUNT AS UN DISCLOSED SOURCES ON THE BASIS OF THE ASSESSMENT IN THE CASE OF M/S BISHAN CHAND MUKESH KUMAR BASED ON STATEMENT OF SH.MANOJ AGGARWAL THAT HE 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. 7 8.3. HOWEVER, IT I S OBSERVED 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 AGGAR WAL. THE 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 ADDI TION WITHOUT 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 ENTIRE 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 MATERIAL 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 RECORD TO SHOW THAT THE APPELLA NT PAID 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 DURING THE COURSE OF ASSESSMENT PROCEEDINGS DESPITE HAVING MADE A REQUEST IN WRITIN G IN THIS 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 BI SHAN CHAND 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 8 DEPARTMEN T 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 APPEL LANT HAS 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 MERE 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 APPELLANT, I FIND NO JUSTIFICATION ON THE PART OF THE ASSESSING OFFICER TO HOLD THAT THE TRANSACTION 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. IT 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 B ENCH, 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) 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 ACIT VS. SH. J AGDISH MITTER IN ITA NO. 268(ASR)/2002, 9 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 HON'BLE TRIBUNAL. 8.6. I N VIEW OF THE ABOVE DISCUSSION AND RESPECTFULLY FOLLOWING THE DECISIONS OF VARIOUS APPELLATE AUTHORITIES CITED SUPRA, IT IS HEREBY HELD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN TREATING THE SALE OF JEWELLERY AS BOGUS. THE ADDITION OF RS. 57,95,097/ - MADE ON THIS COUNT IS, ACCORDINGLY, 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 TRANSA CTION HAD BEEN TREATED TO BE AN ACCOMMODATION ENTRY. HOWEVER, SINCE THE ENTIRE ADDITION STANDS DELETED VIDE PARA 8.6, SUPRA, THE LONG TERM CAPITAL LOSS AS DECLARED WILL HAVE TO BE ALLOWED IN THE HANDS OF THE ASSESSEE. THE ASSESSING OFFICER IS, ACCORDINGLY, 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 AAGARWAL, REPORTED IN (2013) 35 TAXMAN.COM 258, WHEREIN LD.AR SUBMITS THAT HON BLE HIGH COURT HAS DECIDED THE ISSUE ON IDENTICAL FACTS . WE HAVE PERUSED THE SUBMISSIONS OF LD.AR ON THE BASIS OF THE ORDER PASSED BY HON BLE ALLAHABAD HIGH COURT. 4.1. IN THE FACTS OF THE PRESENT CASE HON BLE HIGH COURT, WHILE REMANDING THE ISSUE, DIRECTED THIS TRIBUNAL TO INDEPENDENTLY EXAMINE EACH OF THE CASE AND RETURN A SPECIFIC FINDING, AS TO WHETHER THERE WAS A GENUINE TRANSACTION OF SALE OF JEWELLERY 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, JEWEL LERY DECLARED BY ASSESSEE UNDER VOLUNTARY DISCLOSURE OF INCOME SCHEME (VDIS) HAS NOT BEEN DOUBTED, HOWEVER THE DIRECTION IS IN RESPECT OF ALLEGED SALE OF JEWELLERY MADE BY ASSESSEE TO M/S BISHAN CHAND MUKESH KUMAR/BEMCO JEWELLERS NEEDS VERIFICATION. 10 4 .3. BEFORE US, ASSESSEE FILED VARIOUS DECISIONS PASSED BY COORDINATE BENCHES OF THIS TRIBUNAL 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 FOL LOW ANY OF THESE 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 S PECIFIC DIRECTION 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 19 97, AND SOLD JEWELLERY TO BISHAN CHAND MUKESH KUMAR. BISHAN CHAND MUKESH KUMAR, 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 RECEIVED BY HER ON ACCOUNT OF SALE OF JEWELLERY. THE BUYER BEING BISHAN CHAND MUKESH KUMAR IS 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 PASS ED 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 TH E 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. 7 . F ACTS OF THE CASE BEFORE US ARE IDENTICAL TO THE ISSUE DECIDED BY THE COORDINATE BENCH. THE ISSUE INV OLVED IN THE PRESENT CASE IS THAT SALE OF JEWELRY SHOWN BY THE ASSESSEE TO THE JEWELER IS ALLEGED TO BE AN ACCOMMODATION ENTRY AND THERE IS NO REAL SALE . THIS ALLEGATION IS BA S ED ON THE FACTS GATHERED BY THE INVESTIGATION WING WHERE THE 11 JEWELER HAS CONFESSED THE SAME. HENCE WE ALSO DIRECT THE ASSESSEE TO PRODUCE JEWELER, IN PERSON, ALONG WITH THE ( I ) BOOKS OF ACCOUNTS OF JEWELER ( II ) TREATMENT OF SALE OF JEWELRY BY THE ASSESSEE IN BOOKS OF JEWELER ( III ) THE IMPACT IN THE ASSESSMENT ORDER OF THE JEWELERS OF THIS SALE WHETHER THE JEWELER HAS ACCEPTED IT AS REAL SALE OR MERELY AN ACCOMMODATION ENTRY ( IV ) ANY OTHER DETAILS REGARDING THE PURCHASE OF JEWELRY FROM ASSESSEE THE ASSESSEE IS DIRECTED TO PRODUCE JEWELER WITH THESE DETAILS BEFORE THE LD AO WITHIN T HREE MONTHS FROM THE DATE OF RECEIPT OF THIS ORDER. THE LD AO MAY EXAMINE THE JEWELER WITH RESPECT TO HIS BOOKS OF ACCOUNTS AS WELL AS THE EARLIER ALLEGATION OF ACCOMMODATION ENTRY PROVIDED BY THE JEWELER AND THEN EXAMINE THE ISSUE AFRESH AND DECIDE THE ISSUE OF GENUINENESS OF SALES OF JEWELRY . IF THE ASSESSEE FAILS TO PRODUCE THE JEWELER ALONG WITH NECESSARY DETAILS AS DIRECTED, LD AO MAY DECIDE THE ISSUE ON MERIT AS PER FACTS AVAILABLE ON RECORD. IN THE RESULT, APPEAL FILED BY THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 12 C.O. 120 /DEL/07 : - 8 . 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, NOR HAS HON BLE HIGH COURT DIRECTED THIS TRIBUNAL TO DECIDE THE LEGAL ISSUE THAT WAS TAKEN BY ASSESSEE BEFORE THIS TRIBUNAL. ACCORDI NGLY IN OUR CONSIDERED OPINION THE CROSS OBJECTION RAISED BY ASSESSEE AT THIS JUNCTURE AS ON TODAY DOES NOT ARISE OUT OF THE DIRECTIONS PASSED BY HON BLE HIGH COURT VIDE ORDER DATED 14/03/12 IN A GROUP OF CASES WHEREIN ASSESSEE HAS BEEN ONE OF THE RESPON DENT IN ITA NO. 764/2010. ACCORDINGLY WE DISMISS THE CROSS OBJECTION 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. ACCORDINGLY CO OF T HE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04 .0 4 .2018 . SD/ - SD/ - (K.N. CHARY) ( PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 04 /0 4 /2018 *NEHA* 13 COPY FORWARDED TO 1 . APPLICANT 2 . RESPONDENT 3 . CIT 4 . CIT (A) 5 . DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI 14 1. DRAFT DICTATED ON 03 .0 4 .2018 PS 2. DRAFT PLACED BEFORE AUTHOR 04 .0 4. 2018 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.