2017 (1) TMI 1712 - AT - Income Tax

Addition u/s 68 - bogus transaction of sale of jewellery - HELD THAT - 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. 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 before the Sales Tax Authorities. It is not the stand of the assessee before us that the factum of declaration of jewellery in VDIS, 1997 was not there before the Hon ble jurisdictional High Court before the matter has been restored back to the Tribunal for examination of actual sale transactions made by the assessee. Therefore, in view of express directions of Hon ble jurisdictional High Court to examine the actual sale transactions made by assessee, the decisions relied by the assessee render no support to the assessee in the peculiar facts and circumstances of the instant case. 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 Authorities - Appeal of the Revenue is allowed for statistical purposes.

Summary

Issues:
- Assessment based on accommodation entries in the guise of sale of jewellery
- Deletion of additions by CIT(A) and subsequent appeal by Revenue
- Directions from High Court to independently examine the genuineness of transactions
- Contradictions in documentary evidence and findings
- Examination of actual sale transactions and summoning of alleged purchaser
- Restoration of the matter back to the Assessing Officer for further examination

Analysis:
1. The case involved an assessment completed under section 147 read with section 143(3) of the Income-tax Act based on information regarding accommodation entries provided by a firm in the guise of bogus sale of jewellery. The Assessing Officer added the sale proceeds to the total income of the assessee under section 68 of the Act. However, the CIT(A) deleted the additions, stating that the sale transactions were genuine and supported by proper documentation. The Tribunal dismissed the Revenue's appeal, following precedents, but the High Court directed a reexamination of the transactions' genuineness.

2. The Revenue contended that the additions should have been sustained as the assessee failed to provide documentary evidence supporting the genuineness of the sale transactions. On the other hand, the assessee argued that the transactions were genuine, citing accepted sales to the firm by other parties and documentary evidence. The Tribunal was tasked with examining the genuineness of the sale transactions as per the High Court's directions.

3. The Tribunal noted contradictions in the evidence presented, including the assessment of the firm under section 158BC, lack of evidence on subsequent proceedings against the purchaser, and discrepancies in the sales tax assessment. It emphasized the need for a thorough examination of the evidence, especially from the Sales Tax Authorities, before making a decisive finding on the genuineness of the transactions.

4. The Tribunal highlighted the importance of examining actual sale transactions and summoning the alleged purchaser for verification. It directed the matter to be restored back to the Assessing Officer for further investigation, including verification of stock entries and consideration from the purchaser's books of accounts. The Tribunal allowed the Revenue's appeal for statistical purposes in both cases due to the need for additional examination and verification.

5. The decision underscored the significance of a detailed examination of documentary evidence, verification of transactions, and adherence to the High Court's directions in determining the genuineness of the sale transactions. The matter was remitted to the Assessing Officer for a comprehensive review before a final decision could be made on the additions to the assessee's income.