TMI Blog2018 (4) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. - ITA No. 3679/Del/2006 Cross objection No. 120/Del/2007 - - - Dated:- 4-4-2018 - Shri Prashant Maharishi, Accountant Member And Shri K. N. Chary, Judicial Member Appellant by : Sh. S. R. Senapati, Sr. DR Respondent by : None ORDER 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 direction of the Hon ble Delhi High Court is that the Tribunal needs to consider whether there is genuine transaction of sale of jewellery by the assessee to M/s. Bishan Chand Mukesh Kumar or Bemco 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 deleting the addition amounting to ₹ 75,77,504/- made on account of accommodation entry provided by M/s Bishan Chand Mukes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eleted. The revenue challenged the order of the coordinate bench before the Hon ble Delhi High Court who vide order dated 14.03.2012 has 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 ₹ 75,77 504/- and received cheques from M/s. Bishan Chand Mukesh Kumar against several bills is 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/Del/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 according to that decision issue has been set aside to the file of Assessing Officer with direction to assessee. He therefore, submitted that the issue may be set aside to the Assessing Officer with similar direction. 5. Despite notice none appeared on behalf 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. Despite service of notice on earlier occ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 68(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 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 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 ₹ 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 undisclosed sources on the basis of the assessment in the case of M/s Bishan Chand Mukesh Kumar based on statement of Sh.Manoj Aggarwal t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 sa e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. 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, jewellery 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. 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 follow 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 specific direction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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. Accordingly 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 respondent 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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