TMI Blog2020 (4) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... to sale of the jewellery in the present case was genuine or not. The grounds of the appeal filed by the assessee are reproduced as under: 1. On the fact and in the circumstances of the case, the CIT(A) has erred in holding that jurisdiction was wrongly assumed by the AO u/s 158BD of the Act whereas the fact remain that it was conclusively held on the basis of papers seized and enquires conducted in the case of Bemco Jewellers (P) Ltd. and Manoj Aggarwal, and their statements recorded that the accommodation entry was provided against cash paid by the assesse which was undisclosed income of the assessee. 2. On the facts and in the circumstances of the case, the CIT(A) has erred in holding that when the assessee has declared sale of jewellery in regular return, the AO could not resort to block proceedings while the fact remains that the assessee filed the regular return beyond the date of search proceedings. 2. At the outset, we may like to mention that the assessee is being represented by his legal heir, Sh. Paramjit Singh Dhanjal, who has been duly notified for the date of the hearing. The notices sent by registered post at the address provided in form No. 36 have ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der in the case of Geeta Devi Bindal (supra) has been followed in several cases including ITA 371/2009, Commissioner of Income Tax Vs. Shailendra Kumar Jain. 4. We find that this Tribunal in the case of Anil Kumar Bansal and Nagar Mal Bansal in ITA Nos. 341 148/Del./2007, wherein also the identical issues are involved, has restored the matter back to the Assessing Officer for carrying out certain inquiries and then decide in accordance with law after providing adequate opportunity of being heard to the assessee. The relevant finding of the Tribunal is reproduced as under: 10. Subsequent to the hearing of the case, the bench noted that in other two cases out of the set of 22 cases decided by the Hon ble High Court, i.e. (i) Sh. Ajit Prasad Jain (ITA No. 4200/Del/2006) and (ii) Ajit Prasad Sons (HUF), the Tribunal restored the matter to the file of the Assessing Officer for verifying the genuineness of the sale of jewellery to M/s Bishan chand Mukesh Kumar. In view of the above decisions of the Tribunal, the case was again fixed for hearing on 23/11/2017. The case was then adjourned from time to time on the request of the Ld. Counsel or Bench not functioning and it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verification has been made by the sales Department, and thus filing return before the sales Department is not conclusive evidence of sale of jewellery by the assessee to M/s Bishan Chand Mukesh Kumar. 15. The Ld. CIT(A) observed that the Assessing Officer has not brought on record any evidence whether the jewellery is still in the possession of the assessee. In our opinion, to establish whether the transaction of the sale was genuine or not, was on the assessee and not on the Assessing Officer. Thus, the Assessing Officer cannot be asked to bring on record whether the said jewellery, which was declared in the VDIS scheme, is still in the possession of the assessee. 16. In the case of M/s Sanjeev Sons (HUF) (supra) relied upon by the Ld. Counsel the appeal was heard ex parte, qua the assessee and it has not been brought to the notice of the Tribunal that it was a Hon ble High Court remitted matter. In our opinion, proper facts have not been presented before the Tribunal in said case and therefore we do not find appropriate to rely upon said case. The Ld. Counsel also relied on the decision of the Tribunal in the case of Smt. Madhu Gupta (supra). We have noted that the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A No.4200 4199/Del./2006 assessee was specifically asked to furnish evidence to the acquisition of the above said jewellery. In the absence of any evidence, I have reason to belief that this is accommodation entry and has been routed through a sale bill by obtaining draft/cheque against payment of cash from M/s. Bishan Chand Mukesh Kumar. 7.1 In view of the above contradictions, it is not proper to record a decisive finding based on examination of such evidences, alleged to have been produced before the AO. Secondly, the Sales Tax assessment order of M/s. Bishan Chand Mukesh Kumar for the relevant year, placed in the paper book before us, nowhere reveals that the alleged sale of jewellery made by the assessee are included in the gross turnover declared to the Sales Tax authorities or not nor any such fact is written in the said sales tax assessment order. This fact cannot be ascertained by the Tribunal unless the list of total purchases submitted before the Sales Tax Authorities is placed on record before us for examination to ascertain whether the purchases allegedly made from the assessee were declared by the purchaser before the Sales Tax Authorities. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Tribunal, can be conducted at the stage of Assessing Officer well. The ld. AR was asked if he has any other evidence to establish that the impugned sale of jewellery is recorded in any of books of a/c of purchaser, but he showed his inability to presently adduce any such direct evidence before us. On the other hand, the ld. DR also could not prove by any positive evidence to establish that the impugned sale of jewellery was not recorded in and verifiable from the books of alleged purchaser. In present of all these facts, we, therefore, think it appropriate in the interest of justice to restore the issue back to the file of Assessing Officer for deciding the same after verifying the actual purchase/sale transaction stock entry of impugned jewellery from the books of accounts of the purchaser, records of concerned Sales Tax 10 ITA No.4200 4199/Del./2006 Authorities and if need be, by summoning the purchaser for examination and also by considering all the stands taken by the assessee before the authorities below. Needless to say, the assessee shall be given reasonable opportunity of being heard before deciding the issue on merits in the light of observations made by us as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 undi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 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 to to on merits as well. 8.5 It is also observed that the various-case laws and appellate orders, relied upon by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 Acit Circle 30 (1), vs Gunvir Kumar Jain, on 4 April, 2018 present case Hon'ble High Court, while remanding the issue, directed this Tribunal to independen*_ examine each of the case and return a specific finding, as to whether there was a genuine transact!:: of sale of jewellery by assessee to M/s Bishan Chand Mukesh Kumar/Bemco Jewellers. 4.2. Thus il 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchase of jewelry from assessee The assessee is directed to produce jeweler with these details before the Id AO within three months from the date of receipt of this order. The Id 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. CO.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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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