Commissioner Of Income Tax v. Sh. Prem Parkash Khanna

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH. I.T.A. No.830 of 2010 Date of decision: 28.3.2011 Commissioner of Income Tax Vs. Sh. Prem Parkash Khanna. -----Appellant. -----Respondent CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOELHON'BLE MR. JUSTICE AJAY KUMAR MITTAL Present:-Mr. Sukant Gupta, Standing Counselfor the appellant. for the appellant. --- ADARSH KUMAR GOEL, J. This appeal has been preferred by the revenue underSection 260-A of the Income Tax Act, 1961 (for short, “the Act”)against the order of the Income Tax Appellate Tribunal, Amritsardated 14.12.2009 in ITA No.485(Asr)/2009 for the assessmentyear 1998-99 claiming following substantial questions of law:- “1. Whether on the facts and in the circumstancesof the case, the Hon’ble ITAT Bench was justified inlaw and on facts in deleting the addition made by theAO on account of transaction of sale of jewellerywithout appreciating the evidence on record and thefacts of the case. of the case, the Hon’ble ITAT Bench was justified inlaw and on facts in deleting the addition made by theAO on account of transaction of sale of jewellerywithout appreciating the evidence on record and thefacts of the case. 2. Whether on the facts and in the circumstancesof the case, the Hon’ble ITAT Bench was justified inof the case, the Hon’ble ITAT Bench was justified in following the order dated 26.06.2009 in the case ofSh. Rishi Grover, Prop. M/s. Vishnu Jewellers,Amritsar Versus ACIT in ITA No.198 to 202(ASR)/2006, as the said order has not been accepted by theDepartment on merits on the ground that it isperverse on facts and deficient in law. 3. Whether on the facts and in the circumstancesof the case, the Hon’ble ITAT, Amritsar was justifiedin holding that as no appeal has been filed before theHon’ble Jurisdictional High Court, against the order ofthe ITAT in ITA No.198 to 202(ASR)/2006 for the A.Y.1998-99 to 2002-03 vide order dated 30.6.2009 in thecase of Sh. Rishi Grover prop. M/s Vishnu Jewellers,Amritsar, the decision of the Hon’ble Bench has beenaccepted by the Department and has become final.Whereas the decision of the ITAT, Amritsar in thecase of Sh. Rishi Grover was not accepted by theDepartment on merits of the case, and appeal in thiscase was not filed keeping in view the instruction ofthe Central Board of Direct Taxes issued vide number05/2008 dated 15-05-2008 and circulated vide letterF.No.279/Misc.142/2008 dated 15.05.2008 (wherebythe monetary limit has been prescribed at Rs.4 lac forfiling of appeal to the Hon’ble High Court). The ITAT,while hearing appeal of the Department in the case,should have regard to the instructions of the CentralBoard of Direct Taxes and the circumstances underwhich such appeal was not filed in the case of Sh.Rish Grover, keeping in view the provisions of section268A of the Income Tax Act, 1961. 4. Whether on the facts and in the circumstancesof the case, the Hon’ble ITAT Amritsar was justified infollowing its order in the case of Shri Rishi Groveer, Proprietor M/s Vishnu Jewellers, Amritsar versusACIT in ITA No.198 to 202(ASR)/2006 which in turnhad followed the order of Special Bench of Hon’bleITAT, New Delhi in the case of Sh. Manoj KumarAggarwal & Others versus DCIT which has beenchallenged before the jurisdictional High Court on theground that it is ex-facie perverse. 5. Whether on the facts and in the circumstancesof the case, the Hon’ble ITAT, Amritsar was justifiedin accepting the genuineness of sale of jeweler by theassessee when the assessee’s conduct was in directconflict with test of normal human conduct as laiddown by the Hon’ble Supreme Court in the cases of:- (i) Sumati Dayal Vs CIT(1995) 214 ITR 801(SC)(1995) 214 ITR 801(SC) (ii)CIT vs. Durga Prasad More (1971) 82ITR 540 (SC)”ITR 540 (SC)” Proprietor M/s Vishnu Jewellers, Amritsar versusACIT in ITA No.198 to 202(ASR)/2006 which in turnhad followed the order of Special Bench of Hon’bleITAT, New Delhi in the case of Sh. Manoj KumarAggarwal & Others versus DCIT which has beenchallenged before the jurisdictional High Court on theground that it is ex-facie perverse. 5. Whether on the facts and in the circumstancesof the case, the Hon’ble ITAT, Amritsar was justifiedin accepting the genuineness of sale of jeweler by theassessee when the assessee’s conduct was in directconflict with test of normal human conduct as laiddown by the Hon’ble Supreme Court in the cases of:- (i) Sumati Dayal Vs CIT(1995) 214 ITR 801(SC)(1995) 214 ITR 801(SC) (ii)CIT vs. Durga Prasad More (1971) 82ITR 540 (SC)”ITR 540 (SC)” Learned counsel for the revenue submits that thematter is covered by judgment of this Court dated 8.2.2011 inI.T.A. No.174 of 2009 in CIT v. Sh. Tejinder Singh HUF infavour of the revenue. Therein it was held that the case of theassessee was required to be individually gone into to ascertaingenuineness of the claim for capital loss. The finding in the caseof M/s Bemco/Manoj Aggarwal Jewellers (Bemco) and M/sBishan Chand Mukesh Kumar (BCMK) could not have beenmechanically relied upon. Accordingly, the matter was remandedto the Tribunal for fresh decision. None appears for the assessee inspite of service. Accordingly, we decide the questions in favour of therevenue in terms of earlier order of this Court dated 8.2.2011 inI.T.A. No.174 of 2009 inCIT v. Sh. Tejinder Singh HUFandremand the matter to the Tribunal for fresh decision inaccordance with law. (ADARSH KUMAR GOEL) JUDGE March 28, 2011ashwani ( AJAY KUMAR MITTAL ) JUDGE