Commissioner Of Income Tax,, Jaipur -Ii, Jaipur v. M/S Sambhav, Gems Ltd., F-46, Gem, Jewellery Zone, Epipsitapura Industrial Area, Jaipur

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR D.B. Income Tax Appeal No. 425 / 2009 Commissioner of Income Tax,, Jaipur -II, Jaipur ----Appellant Versus M/s Sambhav, Gems Ltd., F-46, GEM, Jewellery Zone, EPIPSitapura Industrial Area, Jaipur ----Respondent _____________________________________________________ For Appellant(s) : Mr. R.B. Mathur with Mr. K.D. MathurFor Respondent(s) : Mr. P.K. Kasliwal with Mr. Priyesh Kasliwal _____________________________________________________ HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE DR. JUSTICE VIRENDRA KUMAR MATHURJudgment 26/05/2017 1.By way of this appeal, the appellant has challenged thejudgment and order of the Tribunal whereby the Tribunal hasdismissed the appeal of the Department. 2.While admitting the appeal, this Court on 2[nd] July, 2012, hasframed the following substantial question of law: “Whether in the facts and circumstances of the case,the ITAT has acted perversely in deleting the additionswithout appreciating the proviso to section 69C andCBDT’s circular dated 23.12.1998?” 3.Heard learned counsel for the parties. 4. Now the issue is squarely covered by this Court in the case of Commissioner of Income Tax Vs. M/s Sambhav Gems Ltd., inD.B. Income Tax Appeal No. 430/2009, decided on 2[nd] November,2016, wherein it has been observed as under: “3. Considering the law declared by the SupremeCourt in the case of Vijay Proteins Ltd. Vs.Commissioner of Income Tax, Special Leave toAppeal (C) No.8956/2015 decided on 06.04.2015whereby the Supreme Court has dismissed the SLPand confirmed the order dated 09.12.2014 passedby the Gujarat High Court and other decisions of theHigh Court of Gujarat in the case of Sanjay OilcakeIndustries Vs. Commissioner of Income Tax (2009)316 ITR 274 (Guj) and N.K. Industries Ltd. Vs. Dy.C.I.T., Tax Appeal No.240/2003 decided on20.06.2016, the parties are bound by the principleof law pronounced in the aforesaid three judgments. 4. We remit back the case to the Assessing Officerfor deciding afresh on the factual matrix. Theauthority -2- will accept the law but the transactionwhether it is genuine or not will be verified by theAssessing Officer on the basis of the aforesaidthree judgments. The issues are answeredaccordingly. The appeal is accordingly disposed of.” 5.In view of the above, the issue is answered in favour of thedepartment and against the assessee. 6.The matter is remitted back to the AO to decide the sameafresh. Both the parties will be at liberty to lead evidence andcross-examine the witnesses. 7.The appeal stands disposed off. (VIRENDRA KUMAR MATHUR),J. (K.S. JHAVERI),J. B.M. Gandhi/59