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TMI Blog2020 (4) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 returned back with the remark that no such person available on said address. The notice was also served through the Income Tax Department by way of affixture on the address provided in form No. 36. Despite notifying, neither anyone attended on behalf of the assessee, nor any adjournment has been filed. In the circumstances, we were of the opinion that the assessee is not interested in prosecuting the appeal and accordingly same was heard ex parte qua the assessee. 3. In the case, sale of jewellery by the assessee to M/s Bemco Jewellers P Ltd., New Delhi, has been alleged by the Department as accommodation entry received by the assessee. The Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was finally heard on 25/05/2018. On said date the Ld. Counsel filed copy of the decision of the Tribunal in the case of Smt. Madhu Gupta (ITA No. 3341/Del/2007), wherein, the Tribunal upheld the deletion of addition of sale of jewelry. 11. We note The Hon'ble High Court in its order dated 14/03/2012 has directed the Tribunal to examine each of the cases independently for giving a specific finding whether there were genuine transaction of sale of jewellery by the assessee to M/s Bishan Chand Mukesh Kumar/ Bemco Jewellers. We note that in the case of Tejinder Singh HUF (supra), the transaction of the sale of jewellery to Bemco Jewellers Private Limited was under consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Hon'ble High Court has directed to examine the each case independently, thus, the addition in the instant case can't be deleted merely on the basis of finding given in another case. 17. In the other cases, out of the bunch of the 22 appeals remitted by the Hon'ble High Court, while adjudicating the cases of Sh. Ajit Prasad Jain (supra) and Ajit Prasad & Sons (HUF)(supra) the Tribunal has remitted the matter of examining genuineness of the sale of jewellery by the assessee to the file of the Assessing Officer, observing as under: "5. We have heard and considered the submissions of both the parties and have gone through the entire material available on record. From the directions of H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, no such list of purchase submitted before the concerned sales tax authorities, is available here on record. Secondly, it is also not clearly proved by any evidence that the purchase vouchers placed before us also formed the part of purchase vouchers placed before the Sales Tax Authorities for ascertaining the fact that the impugned sale of jewellery was included in the purchases of Bishan Chand Mukesh Kumar declared 8 ITA No.4200 & 4199/Del./2006 before the Sales Tax Authorities. This aspect of the case needs thorough examination at the stage of Assessing Officer from the records of Sales Tax Authorities and from books of purchaser before finally deciding the issue as per directions of the Hon'ble High Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 above. Accordingly, the appeal of the Revenue is allowed for statistical purposes." 18. In another case of Sri Gunvir Kumar Jain (ITA 378/2009), out of the 22 appeals remitted by the Hon'ble High Court, the Tribunal has remitted the matter to the file of the Ld. Assessing Officer observing as under: 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 advance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing 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 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 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. 8.3 However, it is 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 Aggarwal. The Assessing Officer it seems has heavily relied on the assessment in the case of M/s Bishan Chand Mukesh Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appellant are squarely in support of his case. To quote a few, on exactly the same facts and circumstances, the Hon'ble IT AT, Mumbai Bench, in the case of ITO Vs Smt. Jyoti Prakash Chhabria & Ors. (Mumbai) in ITANos. 1592,1593,1601,1602 & i6c>3/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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand 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 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, 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 has attained finality by the order of Hon'ble High Court as on date." 19. Facts of the case before us are identical to the issue decided by the Coordinate-Bench in the case of Ajit Praasd Jain (supra), Ajit Prasad and sons ( HUF) and Gunvir Kumar Jain. In our opinion, in the instant case also for giving independent finding of the fact whether the sale of jewellery by the assessee is a genuine transaction or not , the matter need to be restored to the file of the Assessing Officer. We order accordingly and direct the Assessing Officer to decide the issue following the direction of the Tribunal given in para 7 of the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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