DEEPAK DALELA, Jaipur V. ITO, Jaipur

MA 90/JPR/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5720 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 15-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA JHA J CIT DHK

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM M.A. NO. 90/JP/2016 ARISING OUT OF ITA NO. 51/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09. SHRI DEEPAK DALELA, C-28, PEEYUSH PATH, BAPU NAGAR, JAIPUR. CUKE VS. THE ITO, WARD-6(3), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAOPD 6587 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MUKESH KHANDELWAL (C.A) JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJENDRA JHA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 26.05.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 22/06/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASSE SSEE SEEKING MODIFICATION OF THE TRIBUNALS ORDER DATED 16.12.2015 IN ITA NO. 51 /JP/2014. 2. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE MISCELLANEOUS APPLICATIONS. THE SUBMISSIONS AS MAD E ARE REPRODUCED HERE AND BELOW:- THE FACTS OF THE ABOVE CASE DECIDED BY YOUR HONOUR ARE THAT THE APPELLANT IS A GEMSTONE DEALER AND THE LD. AO DURING THE ASSESSM ENT PROCEEDINGS DOUBTED PURCHASES OF GEMSTONES OF RS. 19,70,895/- M ADE FROM NINE PARTIES AND ON ACCOUNT OF ALLEGED FAILURES OF THE APPELLANT IN PROVING THE GENUINENESS OF THE SAME HE ADDED 25% OF SUCH PURCHASE IN THE RE TURNED INCOME OF THE APPELLANT. ON APPEAL THE LD. CIT(A) CONFIRMED THE SAID ADDITION BY RELYING ON JUDGMENT OF THIS HONBLE BENCH IN THE CASE OF THE A SSESSEE FOR THE AY 2006- 07 (ITA NO. 13/JP/2010) WHEREIN 25% ADDITION WAS CO NFIRMED. HOWEVER THE 2 M.A. NO. 90/JP/2016 SHRI DEEPAK DALELA, JAIPUR. LD. CIT(A) LOST SIGHT OF THE FACT THAT ABOVE SAID O RDER WAS RECALLED BY THIS HONBLE BENCH AND A FRESH ORDER WAS PASSED ON 22.10 .2014 IN WHICH ADDITION OF 15% WAS CONFIRMED ON SUCH ALLEGED UNVERIFIABLE P URCHASES. SINCE THE ABOVE SAID ORDER OF THIS HONBLE BENCH ( WHICH WAS A COMMON ORDER PASSED IN THE CASE OF 14-15 APPELLANTS) REGAR DING ADDITION ON ACCOUNT OF ALLEGED UNVERIFIABLE PURCHASES HAS BEEN CHALLENG ED BY SOME OF THE APPELLANT AND THE DEPARTMENT BEFORE THE HONBLE RAJ ASTHAN HIGH COURT, THIS BENCH STARTED TAKING ONE OF THE FOLLOWING VIEWS IN SIMILAR TYPES OF CASES COMING TO IT, AS PER OPTION OF THE APPELLANT IN THE APPEALS:- 1. CONFIRM THE ADDITION @ 15% ON SUCH ALLEGED UNVERIFI ABLE PURCHASES 2. SET ASIDE THE CASE TO THE LD. AO WITH THE DIRECTION S TO GIVEN EFFECT AS PER VERDICT OF THE HONBLE RAJASTHAN HIGH COURT IN ABOV E REFERRED APPEALS HAVING GONE THROUGH YOUR ORDER IT CAME TO NOTICE TH AT AN ERROR HAS CREPT IN THE ORDER. WHILE ARGUING THE INSTANT APPEAL THE CO UNSEL SHRI MUKESH KHANDELWAL, CA HAD REQUESTED YOUR HONOUR FOR DECIDE D THE CASE BY UPHOLDING ADDITION OF 15% OF UNVERIFIABLE PURCHASES . HOWEVER, DUE TO INADVERTENT ERROR YOUR HONOUR HAS PASSED THE ORDER BY TAKING OPTION NO. 2 I.E. SET ASIDE THE CASE BEFORE THE AO AND GIVEN EFF ECT AS PER VERDICT OF THE HONBLE RAJASTHAN HIGH COURT IN ABOVE SAID APPEAL ( REFER PARA 2.4 OF THE ORDER) AS THE APPELLANT DOES NOT WISH TO WAIT TILL DECISIO N OF THE HONBLE RAJASTAHN HIGH COURT IN SIMILAR TYPES OF CASES FOR WHICH THIS MA IS BEING FILED WITH A SINCERE REQUEST THAT THE ORDER SO PASSED BY YOUR HO NOUR MAY KINDLY BE MODIFIED AS PER THE REQUEST MADE BY THE COUNSEL DUR ING THE HEARING. A DULY SWORN AFFIDAVIT OF SHRI MUKESH KHANDELWAL, CA CONFI RMING THE ABOVE FACTS IS BEING ENCLOSED HEREWITH FOR YOUR HONOURS KIND PERU SAL AND NECESSARY ACTION. 3. THE LD. D/R OPPOSED THE SUBMISSIONS. 4. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD. THIS TRIBUNAL WAS PLEASED TO DECIDE THE AP PEAL AS IN PARA 2.4 OF THE ORDER AS UNDER:- 3 M.A. NO. 90/JP/2016 SHRI DEEPAK DALELA, JAIPUR. 2.4 I HAVE HEARD THE RIVAL CONTENTIONS, AND PERUSE D THE MATERIALS AVAILABLE ON RECORD. THERE IS MERIT IN THE PROPOSAL OF BOTH THE PARTIES. ACCORDINGLY, THE ISSUE RAISED IN ASSESSEES APPEAL IS SET ASIDE THE RESTORED BACK TO THE FILE OF THE AO TO DECIDED THE SAME AFRESH AFTER THE JUDG MENT OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF ANUJ KUMAR VARS HEY & OTHERS (SUPRA) IS DELIVERED, AFTER GIVING ADEQUATE OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE. THUS GROUND NO. 1 AND 2 OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . 4.1 AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE DEE M IT PROPER TO RECALL ORDER DATED 28/1/2016 AND DIRECT THE REGISTRY TO FIX THE APPEAL ALONG WITH THE SIMILAR MATTERS. 5. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON THURSDAY , THE 22 ND DAY OF JUNE 2017. SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 22/06/2017. POOJA/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI DEEEPAK DALELA, C-28, PEEYU SH PATH, BAPUR NAGAR, JAIPUR 2. THE RESPONDENT THE ITO, WARD 6(3), JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (M.A NO. 90/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 4 M.A. NO. 90/JP/2016 SHRI DEEPAK DALELA, JAIPUR.