ADARSH KUMAR GOEL, J. - (1.) CM . No. 23192 -C -II of 2008 : Delay in re -filing the appeal is condoned. Main appeal : Tribunal, Chandigarh Bench "B", Chandigarh passed in ITA No. 459/Chd/2005, for the asst. yr. 1998 -99, proposing to raise following substantial question of law : "1. Whether on the facts and circumstances of the case and in law, the Hon'ble Tribunal was justified in holding that assessee had discharged his onus of explaining genuineness of the sale of jewellery to M/s RKE, whereas the evidence gathered by the Department is otherwise -
(2.) THE assessee claimed sale of jewellery as source of income, which was alleged to be undisclosed income and found as a result of search and seizure at the residence of Mr. Pardeep Kumar Gupta, director of M/s RKE. The AO did not accept the explanation of the assessee. Same view was taken by the CIT(A), but the Tribunal held that explanation of the assessee was genuine. The Tribunal referred to its earlier order in the case of Anil Talwar (ITA No. 621/Chd/2002, dt. "7. Another aspect of the matter is the finding by the CIT(A) that the onus was on the assessee to have produced Mr. Pardeep Kumar Gupta, The director of RKE in the course of assessment proceedings. In our view, this finding is misplaced having regard to the entire conspectus of facts and circumstances of the impugned case. In the instant case, as we have noticed, the AO issued summons under s. 131 to the said Mr. Pardeep Kumar Gupta and in response to it, none appeared. However, in response to the summons, Mr. Pardeep Kumar Gupta submitted an affidavit and other material confirming the transaction of sale of jewellery by the assessee. Having received such material on record and also the fact that the assessment of the purchaser company stood concluded without any adverse inference, the onus clearly shifted onto the Revenue. Now, the onus was on the AO to lead evidence to demolish the case of the assessee. No adequate and credible evidence has been brought on record by the AO. The said Mr. Pardeep Kumar Gupta has been subjected to a search operation by the Revenue under s. 132(1) of the Act and the investigations have also been carried out with respect to RKE and therefore, it was entirely the responsibility of the Revenue to have carried out verification and culled out material contrary to the position canvassed by the assessee. There is no clinching material or evidence against the assessee. The confirmation from M/s RKE was before the AO. The said concern has not been found to be bogus or non -existent. In fact RKE is a company incorporated under the provisions of the Companies Act, 1956 and is an existing income -tax payer on the records of the Revenue. Its identity and existence, therefore, cannot be washed away. Therefore, under such circumstances, the non -appearance of Mr. Pardeep Kumar Gupta, director of M/s RKE before the AO cannot be held against the assessee as to draw adverse inference with respect to the impugned transaction. This is especially in the light of the fact that the transactions with the assessee have been accepted by the Department in the assessment proceedings of the purchaser company, as noted by us in the earlier paras. 8. Another aspect which has a bearing on the case is that similar transaction of sale of jewellery was noted by the Revenue in the case of Shri Anil Talwar, Chandigarh. In the case of Anil Talwar, the Tribunal in ITA No. 621/Chd/2002 has vehemently contended that the factual matrix in the instant case stands on similar footing to that in the case of Anil Talwar (supra). On this aspect, we find that even before the AO, the assessee has submitted that similar transaction in the case of Anil Talwar (supra) was approved by the CIT(A). Subsequently, the decision of CIT(A) has since been and notice that the reasons weighing with the Revenue to reject the sale transaction are similar to those taken by the AO in the instant case. The Tribunal, after considering the entire material on record and the circumstances held that the sale of jewellery stood explained. The Tribunal was satisfied with the same set of evidence and material with respect to RKE that is presently before us. Thus, we are inclined to uphold the stand of the assessee."
(3.) WE have heard learned counsel for the Revenue and perused the record. The finding of the Tribunal is a finding of fact based on appreciation of evidence and material on record.;