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TMI Blog2018 (5) TMI 1991X X X X Extracts X X X X X X X X Extracts X X X X ..... a finding whether the alleged transaction of sale of jewellery by the assessee to M/s Bishan Chand Mukesh Kumar/ Bemco Jeweller was genuine or not. Pursuant to the order of the Hon ble High Court dated 14/03/2012, the cases were heard and being disposed of by way of this order. 2. In above cases, the assessee Sh. Anil kumar Bansal is son of another assessee late Sh. Nagarmal Bansal. The case of Sh. Nagarmal Bansal, is presently being represented by Sri Anil kumar Bansal in the capacity of legal heir. The facts and circumstances of both the cases are identical except change of amount involved and therefore the facts of the case of Sh. Anil Kumar Bansal are only discussed in forthcoming parents. 3. The briefly stated facts of the case of Shri Anil Kumar Bansal(ITA No. 148/Del/2007) are that a search and seizure operation was conducted under section 132(1) of the Income-tax Act, 1961 (in short the Act ) in the cases of M/s Bemco Jewelers Private Limited and its directors Sh. Manoj Aggarwal and Sh. Bishan Chand. On the basis of the documents seized during the course of search operation, proceedings under section 158 BD read with Section 158 BC of the Act were initiated in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be treated as income from undisclosed sources. The assessee was provided with a copy of the reasons recorded for initiating reassessment proceeding. At the fag end of the assessment proceedings i.e. 23/03/2006 the Authorized Representative of the assessee attended and objected to the reassessment proceeding initiated and submitted that (a) The jewellery which was sold to M/s Bishan Chand Mukesh Kumar was declared by the assessee under Voluntarily Disclosure Income Scheme ( VDIS) , 1997 and said declarations under VDIS was accepted by the concerned Commissioner of Income Tax, New Delhi. (b) None of the partners of the firm M/s Bishan chand Mukesh Kumar ever stated in any statement that the firm was engaged in providing accommodation entry. Affidavit of Sh. Bishan Chand was filed. 6. The Assessing Officer, however rejected the contention of the assessee and relying on the finding of the Assessing Officer in the case of M/s Bishan Chand Mukesh Kumar that the concern had no real business and were engaged only in providing accommodation entries in the garb of bogus transaction of purchase and sale of jewellery, bogus long-term capital gain by channelizing income of beneficiari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d others reported in 113 ITD 377. Aggrieved with the, decision of the Tribunal, the Revenue filed appeal before the Hon ble High Court, wherein the Hon ble High Court in ITA 357/2009 , in a bunch of 22 appeals, restored the matter to the Tribunal with following directions: The issue raised in these appeal to the alleged bogus sale of jewellary by the assessee to either Bishan Chand Mukesh Kumar or Bemco Jewellers. We find that the Tribunal has not returned specific findings in respect of each of these matters as to whether there was a genuine sale or not. It has merely relied upon the case of Tejinder Singh decided on 25.07.2008 in IT(SS)A. No. 404/Del 2003. Though we find that it almost all these cases there is a finding returned by the Commissioner of Income Tax that the transactions were genuine, since the revenue had challenged those findings, it was incumbent upon the Tribunal to independently examine; each of the eases and return a specific finding as to whether there was a genuine transaction of sale of jewellary by the asseesee to Bishan Chand Mukesh Kumar/ Bemco Jewellers. Since the Tribunal has not done that, we are setting aside the impugned orders and are remit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted was under consideration. 12. Before us the learnerd Counsel of the assessee has contended that jewellery in question was already declared in the VDIS scheme and a certificate in this respect has been drawn by the then Commissioner of income tax having jurisdiction over the case. In our opinion declaration of jewellery under VDIS scheme may establish purchase or possession of the jewellery, in the hands of the assessee, but same cannot explain genuineness of the sale and corresponding credit in the bank account. 13. Further the Ld. Counsel contended that Sh. Bishan Chand partner of the firm, in the affidavit filed has confirmed the sale of amount of jewellery in question to the firm and the firm was not engaged in providing any accommodation entries. In our opinion, an affidavit is a self-serving document and for admitting the same as evidence, it should be corroborated with other documentary evidences. In the instant case, the assessee was asked to explain the credit amount in the bank account and the assessee claimed that it was as a result of sale of jewelry. In the circumstances, the onus was on the assessee to establish that it was genuine sale. The assessee was requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . From the directions of Hon ble Jurisdictional High Court, as reproduced above, the Tribunal is required to examine as to whether the alleged transaction of sale of jewellery was genuine or not and to return its finding thereat. 6.. A perusal of impugned order reveals that one of the assessee s stands has been that the firm M/s. Bishan Chand Mukesh Kumar is assessed to tax regularly and for the instant year the assessment was completed u/s. 143(3) accepting the turnover declared by it. However, the fact remains that assessment in the case of M/s. Bishan Chand Mukesh Kumar has also been subsequently made u/s. 158BC of the Act, which has been taken into account by the AO in the instant proceedings. The assessee has not whispered even a single word on these proceedings subsequently taken against the alleged purchaser u/s. 158BC of the Act. Hence, this stand of assessee does not render any support to the case of the assessee. 7. The other stand of the assessee in both these cases has also been that the sales tax assessment of M/s. Bishan Chand Mukesh Kumar for the year was completed on the turnover of ₹ 134 crores and the transaction of sale of jewellery was confirmed by w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Hon ble High Court. 8. The contention of the assessee is also that the impugned jewellery was declared in VDIS, 1997. This fact is evident from the documentary evidence placed by the assessee and is well recorded in the orders of the authorities below. However, 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. 9. The other stand taken by the assessee has also been that some of the Assessing Officers at Amritsar, Delhi and Mathura have summoned Shri Bishan Chand and he in his statements had confirmed the purchase of 9 ITA No.4200 4199/Del./2006 jewellery and denied that they are providing only accommodation entries. However, here we find that the ld. Assessing Officer appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erused the submissions advanced by both the sides in the light of the records placed before us as well as the directions of Hon ble High Court vide order dated 14/03/12 passed in a group case, where ITA No. 764/2010 pertains to the appeal filed by the revenue against the present assessee. It is very much necessary to reproduce the relevant extract of the observations of Ld.CIT (A) on merits on this issue, which is as under: 8. Now coming to the merits of the case, it is very clear from the details filed during the course of the assessment proceedings as well as the appellate proceedings that the jewellery in question was declared under VDIS Scheme, which has now been sold and the payments received by account payee cheques. A copy of the VDIS declaration along with valuation report and copy of certificate issued by the Commissioner of Income-tax, Delhi- V, New Delhi, u/s 68(2) of the VDIS Scheme, 1997, along with copy of challan of tax deposited have been furnished. The individual items sold as per the bill issued by the jeweller exactly cross-tally with the items declared in the valuation report filed under VDIS Scheme The sale of jewellery in question and capital gain hereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of M/s Bishan Chand Mukesh Kumar based on the statement of Sh. Aggarwal. Even if the statement of Sh. Aggarwal is taken as gospel truth, it cannot be made the basis of addition without confronting the appellant. It is well settled proposition of law that any evidence gathered behind the back of the assessee cannot be used against him without providing him an opportunity to rebut the same. Therefore, on this ground alone, the entire addition deserves to be deleted, more so, when the transactions stand duly reflected by the appellant. 8.4 It is also observed that the Assessing officer chose not to make any comments on the proven factual matrix of the case. No evidence/seized material whatsoever has been brought on record to reach this conclusion that the cheques amounting to ₹ 57,95,097/- received from M/s Bishan Chand Mukesh Kumar Saraf represented sham transaction. There is also nothing on record to show that the appellant paid any cash or commission to M/s Bishan Chand Mukesh Kumar Saraf for providing the alleged bogus entries. The appellant was also not confronted with any such evidence during the course of assessment proceedings despite having made a request in w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessment Year 1998-99 (2006) 99 TTJ (Cal)(SB) 1. The appellant has also placed reliance on the decision on the Hon'ble ITAT, Amritsar Bench, Amritsar in the case of ACIT vs. Sh. Jagdish Mitter in ITA No. 268(ASR)/2002, where again on same facts and circumstances as in the instant case, the addition u/s 68 while considering the sale of VDIS jewellery to M/s Bishan Chand Mukash Kumar Saraf was deleted by the Hon'ble Tribunal. 8.6 In view of the above discussion and respectfully following the decisions of various appellate authorities cited Supra, it is hereby held that the Assessing Officer was not justified in treating the sale of jewellery as bogus. The addition of ₹ 57,95,097/- made on this count is, accordingly, hereby deleted. 9. It may, however, be mentioned here that while making the aforesaid addition, the Assessing Officer had ignored the Long Term Capital loss declared on sale of jewellery at ₹ 5,36,074/- as the transaction had been treated to be an accommodation entry. However, since the entire addition stands deleted vide para 8.6, supra, the Long Term Capital Loss as declared will have to be allowed in the hands of the assessee. The Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is apparent that assessee might have obtained cheque from Bishan Chand Mukesh Kumar without proving any sale of jewellery. The onus therefore lies on assessee to prove that a sum of ₹ 57,95,097/- has been received by her on account of sale of jewellery. The buyer being Bishan Chand Mukesh Kumar is the witness to the sale as assessee has produced the bills of purchases issued by Bishan Chand Mukesh Kumar. Therefore in view of the directions passed by Hon'ble Delhi High Court, we direct assessee to produce Bishan Chand Mukesh Kumar before Ld. AO along with their books of account and details of purchase/sale of jewellery. Ld. AO is directed to verily the evidences produced by assessee to examine the sale of jewellery and decide the issue afresh in accordance with law. 4.5 Accordingly we allow the appeal filed by revenue for statistical purposes. 7. Facts of the case before us are identical to the issue decided by the coordinate bench. The issue involved in the present case is that sale of jewelry shown by the assessee to the jeweler is alleged to be an accommodation entry and there is no real sale. This allegation is based on the facts gathered by the investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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