Income Tax Appellate Tribunal - Jaipur
Dwarka Gems Ltd., Jaipur vs Acit, Jaipur on 12 September, 2017
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI BHAGCHAND, AM & SHRI KUL BHARAT, JM
vk;dj vihy la-@ITA No. 87/JP/2017
fu/kZkj.k o"kZ@Assessment Year : 2008-09
M/s Dwarka Gems Limited, cuke The ACIT,
G-1-5 &6, EPIP, Sitapura Vs. Circle-7,
Industrial Area, Jaipur. Jaipur.
PAN No.: AAACD8548H
vihykFkhZ@Appellant izR;FkhZ@Respondent
fu/kZkfjrh dh vksj ls@ Assessee by : Shri Manish Agarwal (C.A.)
jktLo dh vksj ls@ Revenue by : Shri R.A.Verma (Addl.CIT)
lquokbZ dh rkjh[k@ Date of Hearing : 05/09/2017
mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 12/09/2017
vkns'k@ ORDER
PER: BHAGCHAND, A.M. This appeal filed by the assessee emanates from the order of the ld. CIT(A), Jaipur dated 06/10/2016 for A.Y. 2008-09 wherein the assessee has raised following grounds of appeal:
"1. On the facts and in the circumstances of the case the Ld. CIT(A) has grossly erred in confirming the action of Ld. AO in imposing penalty of 92,700/- u/s 271(1)(c) of the Income Tax Act, arbitrarily.
1.2. That the Ld. CIT(A) has further erred in upholding the penalty imposed by the A.O. without establishing any malafide intention of the assessee 2 ITA 87/JP/2016_ M/s Dwarka Gems Ltd. Vs. ACIT, Jaipur and by ignoring the fact that every single detail as asked for was provided by the assessee and nothing has been established as concealed nor any inaccurate particulars has been proven to have been furnished. Therefore, passing of the impugned order is against the principal of natural justice, hence same deserves to be held bad in law."
2. The only issue involved in appeal is against sustaining the penalty levied u/s 271(1)(c) of the I.T.Act of Rs. 92,700/-.
3. At the outset of hearing, ld. AR submitted that Hon'ble Rajasthan High Court while deciding the various appeals of the assessee has also decided ITA No. 264/2016 of the assessee in which quantum issue was involved and Hon'ble High Court has restored the issue to the Assessing Officer. The relevant portion of Hon'ble ITAT is reproduced as under:
"Appeal No. 266/2016, is admitted on following questions and with the consent of the parties, and the same is decided today itself.
"(i) Whether in the facts and circumstances of case, the ITAT was justified in directing the Assessing officer to apply 15% net profit rate on unverifiable bogus purchases of Rs.
12715686/- ignoring the facts that the quantum of stated purchases was not established and that on inquiries the alleged sellers were found to be mere entry providers and non-existent.
"5. Counsel for the appellant has relied upon the decision of this Court in the case of Commissioner of Income Tax, Jaipur-II, Jaipur Vs. M/s Aditya Gems, K-10 Fateh Tiba, Adarsh Nagar, Jaipur in D.B. Income Tax Appeal No. 3 ITA 87/JP/2016_ M/s Dwarka Gems Ltd. Vs. ACIT, Jaipur 234/2008, decided on 2nd November, 2016 wherein it has been held as under:
"3. Considering the law declared by the Supreme Court in the case of Vijay Proteins Ltd. Vs. Commissioner of Income Tax, Special Leave to Appeal © No. 8956/2015 decided on 06.04.2015 whereby the Supreme Court has dismissed the SLP and confirmed the order dated 09.12.2014 passed by the Gujarat High Court and other decisions of the High Court of Gujarat in the case of Sanjay Oilcake Industries 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 on 20.06.2016, the parties are bound by the principle of law pronounced in the aforesaid three judgments.
4. We remit back the case to the Assessing Officer for deciding afresh on the factual matrix. The authority will accept the law but the transaction whether it is genuine or not will be verified by the Assessing Officer on the basis of the aforesaid three judgments. The issues are answered accordingly. The appeal is accordingly disposed of."
6. Taking into consideration the above, the matters are remitted back to the AO for reconsideration. It will not be out of place to mention that observations which are made by this Court in the above judgment and the other judgment which sought to be relied upon by the assessee will be considered on merits. The AO whole considering the matter will give benefit of the law declared by this Court and also grant opportunity for cross-examination of the witnesses to the assessee."
4. On the other hand, ld. D/R supported the orders of the lower authorities.
4 ITA 87/JP/2016_ M/s Dwarka Gems Ltd. Vs. ACIT, Jaipur
5. We have heard the rival contentions and pursued the material available on record. We have also gone through the order of Hon'ble High Court. In view of the decision of Hon'ble High Court, this issue also needs to be restored back to AO. The matter remit back to AO for fresh decision. The appeal of assessee is allowed for statistical purposes. Order pronounced in the open court on 12/09/2017.
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(Kul Bharat) (BHAGCHAND)
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fnukad@Dated:- 12/09/2017
*Ganesh Kr.
vkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant- M/s Dwarka Gems Limited, Jaipur.
2. izR;FkhZ@ The Respondent- ACIT,Circle-7, Jaipur
3. vk;dj vk;qDr@CIT
4. vk;dj vk;qDr¼vihy½@The CIT(A)
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur
6. xkMZ QkbZy@ Guard File (ITA No. 87/JP/2016) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar