The Commissioner Of Income Tax-Ii v. Sh. Naresh Kumar Kohli

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH. I.T.A. No.880 of 2010 (O&M)Date of decision: 16.3.2011 The Commissioner of Income Tax-II. Vs. Sh. Naresh Kumar Kohli. -----Appellant. -----Respondent CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOELHON'BLE MR. JUSTICE JASWANT SINGH Present:-Mr. Sukant Gupta, Standing Counselfor the appellant. --- ADARSH KUMAR GOEL, J. 1. 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 8.6.2010 in I.T.A. No.183(ASR)/2010 for the assessmentyear 2000-01 proposing to raise following substantial questions oflaw:- i. Whether on the facts and circumstances of thecase, Hon’ble ITAT Bench was justified in law and onthe facts in deleting the addition made by the A.O. onaccount of transaction of sale of jewellery withoutappreciating the evidence on record and the facts ofthe case? ii.Whether on the facts and circumstances of thecase, Hon’ble ITAT Bench, Amritsar was justified in following the order dated 25.07.2008 of the SpecialBench of ITAT, New Delhi, which is ex-facie perverseand has been challenged before the Hon’ble HighCourt? iii.Whether on the facts and in the circumstancesof the case, Hon’ble ITAT Bench, Amritsar wasjustified in following the order of Special Bench ofITAT, New Delhi when that order containedcontradictory findings such that, Sh. Manoj Aggarwalwas found to be hawala operator and was equatedwith M/s Bishan Chand Mukesh Kumar BemcoJewellers Pvt. Ltd. (being a director therein), however,finding was given that Bemco Jewellers Pvt. Ltd.Bishan Chand Mukesh Kumar was engaged ingenuine business of trade of jewellery? iv.Whether on the facts and in the circumstancesof the case, the Hon’ble ITAT was justified in followingits decision dated 11.09.2008 in the case ACITRange-I, Jalandhar Vs. Sh. K.L. Sehgal, Jalandharand others in ITA No.415(ASR)/2006 which followedthe decision of M/s Bemco Jewellers Pvt. Ltd./ M/sBishan Chand Mukesh Kumar without appreciatingthe facts and evidence on record in the present case?v.Whether on the facts and in the circumstancesof the case, Hon’ble ITAT, Amritsar was justified inaccepting the genuineness of the jewellerytransactions of the respondent’s conduct conflictedwith the test of “Normal human conduct” principle laiddown by the Hon'ble Supreme Court in the case ofDurga Prasad More 82 ITR 540 and Sumati Dayal 214ITR 801? vi.Whether the Hon’ble ITAT grossly erred in lawby applying two different yardsticks and standards by requiring the appellant Revenue Dept. to pass test ofcross examination of all principles laid down by theHon’ble Supreme Court in the case of Durga PrasadMore 82 ITR 540 and Sumati Dayal 214 ITR 801?vi.Whether the Hon’ble ITAT grossly erred in lawby applying two different yardsticks and standards byrequiring the appellant Revenue Dept. to pass test ofcross examination of all witnesses and at the sametime being satisfied by all the respondent's avermentsat face value, thus forcing the revenue to prove itscase beyond all reasonable doubt? 2. Learned counsel for the revenue states that thematter is covered by judgment of this Court dated 8.2.2011 inI.T.A. No.174 of 2009CIT v. Sh. Tejinder Singh HUF, wherein all the above questions have been answered in favour of therevenue after hearing the parties and the matter has beenremanded to the Tribunal for fresh decision. 3. Even though ordinarily we would have issued notice to the assessee, we consider it to be unnecessary having regard tothe fact that the matter is covered and has been remanded to theTribunal. 4. Accordingly, while disposing of this appeal in terms ofabove order, we remand the matter to the Tribunal for freshdecision on merits in accordance with law after hearing theconcerned parties. 2. Learned counsel for the revenue states that thematter is covered by judgment of this Court dated 8.2.2011 inI.T.A. No.174 of 2009CIT v. Sh. Tejinder Singh HUF, wherein all the above questions have been answered in favour of therevenue after hearing the parties and the matter has beenremanded to the Tribunal for fresh decision. 3. Even though ordinarily we would have issued notice to the assessee, we consider it to be unnecessary having regard tothe fact that the matter is covered and has been remanded to theTribunal. 4. Accordingly, while disposing of this appeal in terms ofabove order, we remand the matter to the Tribunal for freshdecision on merits in accordance with law after hearing theconcerned parties. 5. Since this order is being passed without notice to theassessee, for the reason mentioned above, we make it clear that if respondent-assessee is aggrieved by this order, he will be at liberty to move this Court for appropriate orders. The appeal stands disposed of accordingly. (ADARSH KUMAR GOEL) JUDGE March 16, 2011ashwani (JASWANT SINGH) JUDGE