ITO, New Delhi v. Smt. Shukla Seth, New Delhi

ITA 4896/DEL/2009 | 2000-2001
Pronouncement Date: 02-03-2010 | Result: Allowed

Appeal Details

RSA Number 489620114 RSA 2009
Bench Delhi
Appeal Number ITA 4896/DEL/2009
Duration Of Justice 2 month(s) 2 day(s)
Appellant ITO, New Delhi
Respondent Smt. Shukla Seth, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 02-03-2010
Appeal Filed By Department
Order Result Allowed
Bench Allotted G
Tribunal Order Date 02-03-2010
Assessment Year 2000-2001
Appeal Filed On 30-12-2009
Judgment Text
I.T.A. NO. 4896 4897 4898 /DEL/2009 1/7 IN THE INCOME TAX APPELLATE TRIBUNAL NEW DELHI BENCH G BEFORE SHRI A.K. GARODIA ACCOUTANT MEMBER AND SHRI GEORGE MATHAN JUDICIAL MEMBER I.T.A. NO. 4896/DEL/2009 (ASSESSMENT YEAR 2000-01) ITO WARD 31(2) VS. SMT. SHUKLA SETH NEW DELHI. L/H OF LATE SHRI JAJAK RAJ SETH L-23 CONNAUGHT PLACE NEW DELHI. ITA NO. 4897/DEL/2009 (ASSESSMENT YEAR 1999-2000) ITO WARD 31(2) VS. SMT. SHUKLA SETH NEW DELHI L-23 CONNAUGHT PLACE NEW DELHI. I.T.A. NO. 4898/DEL/2009 (ASSESSMENT YEAR 1999-2000) ITO WARD 31(2) VS. SMT. SHUKLA SETH NEW DELHI. L/H OF LATE SHRI JAJAK RAJ SETH(HUF) L-23 CONNAUGHT PLACE NEW DELHI. (APPELLANTS) (RESPONDENTS) PAN / GIR NO. APPELLANT BY: MS. SURABHI AHLUWALIA SR. DR RESPONDENT BY: SHRI PRADEEP AGGARWAL CA ORDER I.T.A. NO. 4896 4897 4898 /DEL/2009 2/7 PER GEORGE MATHAN JM: 1. I.T.A. NO. 4896/DEL/2009 IS THE APPEAL BY THE RE VENUE AGAINST THE ORDER OF LD. CIT(A) XXVI NEW DELHI IN APPEAL NO.109/2007-08 DATED 30.10.2009 FOR THE ASSESSMENT YEAR 2000-01 IN THE CASE OF SMT. SHUKLA SETH AS LEGAL HEIR OF LATE SHRI JANAK RAJ SETH. I. T.A. NO. 4897/DEL/2009 IS THE APPEAL BY THE REVENUE AGAI NST THE ORDER OF LD. CIT(A) XXVI NEW DELHI IN APPEAL NO.426/2006-07 DATED 30.10.2009 FOR THE ASSESSMENT YEAR 1999-2000 IN THE CASE OF SMT. SHUKLA SETH AND I.T.A. NO. 4898/DEL/2009 IS THE APPEAL BY THE REVEN UE AGAINST THE ORDER OF LD. CIT(A) XXVI NEW DELHI IN APPEAL NO.427/2006-07 DATED 30.10.2009 FOR THE ASSESSMENT YEAR 1999-2000 IN THE CASE OF JANAK RAJ SETH HUF REPRESENTED BY SMT. SHUKLA SETH. MS. SURABHI AHLUWALIA SR. DR REPRESENTED FOR THE REVEN UE AND SHRI PRADEEP AGGARWAL CA REPRESENTED FOR THE ASSESSEES. AS ALL THE THREE APPEALS ARE IN CONNECT ION WITH THE SAME FACTS AND CONTAIN THE SAME ISSUE ALL THESE THREE APPEALS ARE BEING DISPOSE OF BY THIS COMMON ORDER. 2. IT WAS THE SUBMISSION BY THE LD. D.R. THAT IN AL L THE THREE CASES THE ASSESSMENTS HAD BEEN COMPLETED U/S 144 OF THE ACT. IT WAS THE SUBMISSION THAT AS THE CONSEQUENCE OF SEARCH AND SEIZURE OPERATION CONDUCT ED I.T.A. NO. 4896 4897 4898 /DEL/2009 3/7 ON SHRI MANOJ AGGARWAL AND SHRI BISHEN CHAND AND OTHER ASSOCIATED CONCERNS INFORMATION HAD BEEN RECEIVED BY THE A.O. THAT THE ASSESSEES HAVE RECEIV ED ACCOMMODATION ENTRIES. NOTICE U/S 148 HAD BEEN ISS UED AND THERE WAS NO COMPLIANCE IN RESPONSE TO THE NOTI CES ISSUED AND THE SUBSEQUENT NOTICE ISSUED U/S 142(1) OF THE ACT. CONSEQUENTLY THE A.O. HAD MADE ADDITION ON THE BASIS OF THE INFORMATION RECEIVED IN REGARD TO THE ACCOMMODATION ENTRIES RECEIVED BY THE ASSESSEES. I T WAS THE SUBMISSION THAT BEFORE THE LD. CIT(A) THE ASSESSEES HAVE PRODUCED SUBSTANTIAL EVIDENCES AND T HE COPIES OF THE INCOME TAX RETURNS FILED BEFORE THE I TO WARD 31(2) AS ALSO THE COMPUTATION OF TOTAL INCOME AND COMPUTATION OF CAPITAL GAINS AND THE PHOTOCOPIES OF THE FINANCIAL STATEMENTS. IT WAS THE FURTHER SUBMISSIO N THAT THE COPIES OF THE RECEIPT ISSUED BY BEMCO JEWELLERS AND COPIES OF THE VALUATION REPORT OF THE JEWELERS AS O N 31.3.1981 AND AS ON 31.3.1997 WEE ALSO PRODUCED BEFORE THE CIT(A) FOR THE FIRST TIME. IT WAS THE SUBMISSION THAT THE LD. CIT(A) HAD CONSIDERED ALL T HE EVIDENCES BUT HAD NOT GIVEN THE A.O. ANY OPPORTUNIT Y TO VERIFY ANY OF THE DETAILS PRODUCED. IT WAS THE FUR THER SUBMISSION THAT IN THE CASE OF SMT. SHUKLA SETH IN RESPECT OF I.T.A. NO. 4897/DEL/2009 THE CIT(A) HAS SPECIFICALLY MENTIONED THAT THE A.O. WOULD HAVE DON E I.T.A. NO. 4896 4897 4898 /DEL/2009 4/7 WELL IF THE RETURN FILED FOR THE RELEVANT ASSESSMEN T YEAR WOULD HAVE BEEN VERIFIED AS NO JEWELLERY WAS ACTUAL LY SOLD BY THE ASSESSEE DURING THE RELEVANT ASSESSMENT YEAR. IT WAS THE SUBMISSION THAT NO RETURNS WERE B EFORE THE A.O. WHO WAS THE ITO WARD 12(4) AND THE RETURN HAD BEEN FILED BEFORE THE ITO 31(2). IT WAS THE FU RTHER SUBMISSION THAT EVEN ASSUMING THAT THE RETURN HAD B EEN FILED A LETTER MENTIONING THAT THE RETURN HAD BEEN FILED WITH THE ITO WARD 31(2) WITH THE ACKNOWLEDGEMENT NUMBER AND DATE COULD HAVE BEEN FILED WHICH WAS ALS O NOT DONE. IT WAS THE SUBMISSION THAT NO APPLICATIO N UNDER RULE 46(A) HAD ALSO BEEN MADE AND CONSEQUENTL Y THE CIT(A) COULD NOT HAVE BEEN LOOKED INTO ANY FRES H EVIDENCE WITHOUT GRANTING THE A.O. ADEQUATE OPPORTUNITY TO VERIFY THE EVIDENCES PRODUCED. IT W AS THE FURTHER SUBMISSION THAT THE DETAILS OF JEWELLER Y SOLD AND THE DATE OF SALE OF JEWELLERY WAS NOT MADE AVAI LABLE TO THE A.O. FOR VERIFICATION. IT WAS THE SUBMISSIO N THAT THE ORDER OF LD. CIT(A) WAS LIABLE TO BE SET ASIDE AND THE ISSUE RESTORED TO THE FILE OF THE A.O. FOR EXAM INING THE EVIDENCES PRODUCED. 3. IN REPLY THE LD. A.R. SUBMITTED THAT PART OF THE JEWELLERY HAD BEEN SOLD IN THE PRECEDING ASSESSMENT YEAR AND ONLY PART OF THE JEWELLERY WAS SOLD DURING THE RELEVANT ASSESSMENT YEAR. IT WAS THE FURTHER I.T.A. NO. 4896 4897 4898 /DEL/2009 5/7 SUBMISSION THAT THE ISSUE WHETHER JEWELLERY SOLD THROUGH BISHAN CHAND MUKESH KUAMR WAS LIABLE TO BE TREATED AS UNEXPLAINED INCOME OF THE ASSESSEE WAS ALREADY CONSIDERED BY THE SPECIAL BENCH OF THIS TRIBUNAL IN THE CASE OF MANOJ AGGARWAL & BISHAN CHAND MUKESH KUMAR REPORTED IN 113 ITD 377 DEL. (S.B.). IT WAS THE SUBMISSION THAT IN VIEW OF THE DECISION OF THE SPECIAL BENCH OF THIS TRIBUNAL IN T HE CASE OF MANOJ AGGARWAL AND OTHERS REFERRED TO SUPRA NO ADDITION WAS CALLED FOR IN THE HANDS OF THE ASSESSE E. IT WAS THE SUBMISSION THAT THE ORDER OF CIT(A) WAS LIA BLE TO BE UPHELD. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE HAVE ALSO PERUSED THE ORDERS OF LOWER AUTHORITIES. IT I S NOTICED THAT THE ASSESSMENTS PASSED IN THE CASE OF THE ASSESSEES ARE EX PARTE ASSESSMENTS. IT IS ALSO NO TICED THAT THE ASSESSEE HAS PRODUCED SUBSTANTIAL EVIDENCE BEFORE THE LD. CIT(A). IT IS ALSO NOTICED THAT THE CIT(A) HAS CANCELLED THE ASSESSMENT HOLDING THAT TH E REOPENING OF THE ASSESSMENT WAS BAD IN LAW IN THE C ASE OF SMT. SHUKLA SETH. IN THE CASE OF SMT. SHUKLA SE TH L/H OF LATE SHRI JANAK RAJ SETH AND IN THE CASE OF SMT. SHUKLA SETH L/H OF LATE SHRI JANAK RAJ SETH (HUF) THE CIT(A) HAS DELETED THE ADDITIONS BY HOLDINGS THAT T HE SPECIAL BENCH OF THIS TRIBUNAL HAS IN THE CASE OF M ANOJ I.T.A. NO. 4896 4897 4898 /DEL/2009 6/7 AGGARWAL AND OTHERS HELD THAT THE TRANSACTION WITH M/S. MANOJ AGGARWAL CANNOT BE TREATED AS BOGUS. HOWEVER IT IS NOTICED THAT THE CIT(A) HAS VERIFIED SUBSTANT IAL EVIDENCES BUT HAS NOT GIVEN THE EVIDENCES PRODUCED BEFORE HIM TO THE A.O. FOR VERIFICATION OR REBUTTAL . IT IS ALSO NOTICED THAT THE ASSESSEE HAS SPECIFICALLY STA TED THAT PART OF THE JEWELLERY HAS BEEN SOLD IN THE EARLIER YEARS AND PART OF THE JEWELLERY DURING THE RELEVANT ASSES SMENT YEAR. A PERUSAL OF THE PAPER BOOK FILED SHOWS THAT THE ASSESSEE HAS PRODUCED THE BILLS IN REGARD TO THE SA LE OF JEWELLERY. A PERUSAL OF THE BILLS WHEN COMPARED WI TH THE VDIS DECLARATION SHOWS THAT ALL THE TRANSACTION S DO NOT TALLY. IN THESE CIRCUMSTANCES IT CANNOT BE SA ID THAT THE CIT(A) HAS DONE THE COMPLETE VERIFICATION. IN THESE CIRCUMSTANCES THE ISSUE IN THESE APPEALS ARE RESTO RED TO THE FILE OF THE A.O. AND THE ASSESSEE SHALL PRODUCE ALL EVIDENCES ON THE BASIS OF WHICH THE ASSESSEE RELIES UPON TO SHOW THAT THE JEWELLERY AS DECLARED UNDER THE VD IS HAS BEEN SOLD. THE A.O. IS AT LIBERTY TO CALL FOR ALL SUCH EVIDENCES TO SATISFY HIMSELF AS TO WHETHER THE JEWE LLERY HAS BEEN SOLD THROUGH M/S. MANOJ AGGARWAL OR BISHAN CHAND. IF IT IS FOUND THAT THE JEWELLERY HAS BEEN SOLD THROUGH MANOJ AGGARWAL BISHAN CHAND JEWELLERS SUCH SALE OF JEWELLERY SHALL NOT BE TREATED AS BOGUS IN VIEW OF I.T.A. NO. 4896 4897 4898 /DEL/2009 7/7 THE DECISION OF THE SPECIAL BENCH OF THIS TRIBUNAL IN THE CASE OF MANOJ AGGARWAL AND OTHERS REFERRED TO SUPRA . 5. IN REGARD TO THE SALE OF JEWELLERY TO OTHERS TH E A.O. WOULD BE AT LIBERTY TO VERIFY THE SAME IN ACCORDANC E WITH LAW. IN THESE CIRCUMSTANCES THE APPEALS OF T HE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT THE APPEALS OF THE REVENUE ARE AL LOWED FOR STATISTICAL PURPOSES. 7. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT O N 02 ND MARCH 2010. SD./- SD./- (A. K. GARODIA) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:02 ND MAR. 2009 SP. COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT TRUE COPY: BY ORDER 4. CIT(A) 5. DR DY. REGISTRAR ITAT NEW DELHI