R.K.AGRAWAL,RAM SURAT RAM (MAURYA),JJ. - (1.) THE present appeal has been filed under Section 260 (A) of the Income Tax Act, 1961 (hereinafter referred to as the 'Act') against the order dated 20.8.2009, passed by the Income Tax Appellate Tribunal, Agra (hereinafter referred to as the 'Tribunal'). The Commissioner of Income Tax, Agra has proposed the following substantial question of law said to be arising out of the order of the Tribunal: - "Whether the Hon'ble ITAT was legally correct in confirming the findings of the learned CIT (A) in deleting the addition of Rs. 36,84,366/ - made by the A.O. by invoking the provisions of Section 68 of IT Act 1961 ignoring the legal aspect that the assessee could not prove the sale of jewellery before the A.O." Briefly stated, the facts giving rise to the present appeal are as follows: -
(2.) THE appeal relates to the Assessment Year 1998 -99. The respondent assessee is an individual engaged in the activities of building, construction and sale of properties. He had filed his return of income on 30.10.1999 declaring an income of Rs. 1,21,040/ -. Subsequently, re -assessment proceedings were initiated on receipt of information from the DCIT, Central Circle ­ 3, New Delhi that the assessee had shown bogus sale of jewellery to M/s. Bishan Chand Mukesh Kumar, New Delhi. Pursuant to the re -assessment proceedings, the respondent through his authorized representative appeared and submitted documents to show that the information received is not correct. The respondent had filed the declaration under the Voluntary Disclosure of Income Scheme, 1997. The declaration made under the said scheme as also the sales vouchers and proof of the amount of consideration had been received through bank drafts. The partner of M/s. Bishan Chand Mukesh Kumar, namely, Sri Bishan Chand was also examined and confirmed the transactions of sale effected through him. The Assessing Officer however did not believe the statement and the documentary evidence filed before him and vide order dated 29.12.2005 assessed the income at Rs. 38,05,406/ -, comprising of unexplained accretion in assets at Rs. 36,84,366/ - . Feeling aggrieved, the respondent preferred an appeal before the Commissioner of Income Tax (Appeals) who vide order dated 12.2.2008 allowed the appeal. The Commissioner of Income Tax (Appeals) while allowing the appeal has held as follows: - "3.5 I have considered the submissions and perused the material placed on the record of the case. The very basis for making the addition is on account of statement of Shri Manoj Agarwal recorded during the course of search of M/s. Bishan Chand Mukesh Kumar. A perusal of the record shows that the statement of Shri Manoj Kumar does not merit consideration because he is neither partner nor employee of M/s. Bishan Chand Mukesh Kumar and not connected with the activities of M/s. Bishan Chand Mukesh Kumar. Shri Bishan Chand partner of M/s. Bishan Chand Mukesh Kumar had categorically and repeatedly confirmed the transaction of the purchase of utensils/jewellery, etc. not only with the appellant but in other cases also in the statement on oath recorded by the different income tax authorities as stated earlier which include the statement on oath recorded by the AO's of Agra Charge also wherein he has denied providing accommodation entries on commission basis and has further confirmed that neither he nor any partner has given statement to this effect. The confirmation filed in the capacity of partner also confirms the genuineness of the transaction with the appellant. M/s. Bishan Chand Mukesh Kumar is regularly assessed to tax and the assessment of the instant year was completed u/s 143(3) accepting the turnover declared by it. M/s. Bishan Chand Mukesh Kumar is also registered with Sales Tax authorities and the sales tax assessment order filed in paper book contains turnover of more than Rs. 100 crores. No evidence has been brought on the record by the AO to suggest that the impugned sale is a bogus one. The appellant on his part has explained and proved the acquisition of jewellery etc. by submitting documents i.e. VDIS certificate, etc. and the acquisition cannot be doubted in view of the case laws cited by the appellant. It is an admitted fact that in VDIS, 1997, section 71(1) is regarding secrecy of declaration to be maintained and all particulars contained in a declaration made under sub section (1) of section 64 shall be treated as confidential and notwithstanding anything contained in an law for the time being in force, no court or any authority shall be entitled to require any public servant or the declarant to produce before it any such declaration or any part thereof or to give any evidence before it in respect thereof. I have perused the declaration which was issued in the name of appellant by the Ld. CIT, Agra and thus the acquisition of jewellery, etc. stands proved and explained and no adverse inference can be drawn on this count. The appellant on his part has discharged the burden by filing necessary evidence in respect of sale of jewellery, etc. genuineness of the transaction, confirmation of buyer, identity and existence and possession of items sold. The AO has not pointed out any discrepancy in the evidences relied upon by the appellant and has not brought any credible evidence to contradict the contention. The decisions rendered by co -ordinate benches of ITAT including Agra Bench, Third Member and Special Bench and various CIT (Appeals) as cited also supports the case of the appellant being identical on the issue. Considering the facts and evidence placed on record, the addition of Rs. 36,84,366/ - made on account of bogus sale of jewellery is directed to be deleted." The Revenue feeling aggrieved, preferred an appeal before the Income Tax Appellate Tribunal, Agra Bench, Agra. The Tribunal vide the impugned order has dismissed the appeal, holding that the Revenue has thoroughly failed to establish it's case to justify the addition of Rs. 36,84,366/ - made on account of jewellery etc. sold to M/s. Bishan Chand Mukesh Kumar whereas the assessee has been able to discharge its onus to establish the genuineness of the claimed sale by furnishing the relevant information about the transaction supported with document. The Commissioner of Income Tax (Appeals) was justified in deleting the addition in question. We have heard Sri Shambhu Chopra, learned Senior Standing Counsel for the Revenue and Sri Krishna Agarwal, learned counsel for the respondent assessee. Sri Chopra, learned counsel, submitted that the statement of Sri Manoj Kumar was categorical in which bogus transactions and paper entries were given by the firm, M/s. Bishan Chand Mukesh Kumar and therefore, the Tribunal had erred in law in discarding the statement and accepting the case set up by the respondent assessee. The submission is wholly misconceived. The respondent assessee had submitted sufficient material and evidence to show that he was in possession of the requisite jewellery as the same was declared under the Voluntary Disclosure of Income Scheme, 1997, which was also accepted and tax was paid. Further, Sri Bishan Chand, partner of M/s. Bishan Chand Mukesh Kumar was examined on oath by the Assessing Officer and Sri Bishan Chand had categorically stated that he had purchased the jewellery in question from the respondent assessee and had made the payment through bank draft. Assessment under the Delhi Sales Tax Act had also been made on the turnover and further, all the purchases and sales have been accepted by the Assessing Authority under the Income Tax Act while completing the assessment for the instant year under Section 143 (3) of the Act. In view of the overwhelming documentary evidence and oral evidence given by the respondent, the Commissioner of Income Tax (Appeals) was perfectly justified in accepting the same and the order of the Tribunal does not suffer from any legal infirmity. The appeal fails and is dismissed.;