IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. I.T.A. No.830 of 2010 Date of decision: 28.3.2011 Commissioner of Income Tax -----Appellant. Vs. Sh. Prem Parkash Khanna. -----Respondent CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE AJAY KUMAR MITTAL Present:- Mr. Sukant Gupta, Standing Counsel for the appellant. --- ADARSH KUMAR GOEL, J. This appeal has been preferred by the revenue under Section 260-A of the Income Tax Act, 1961 (for short, “the Act”) against the order of the Income Tax Appellate Tribunal, Amritsar dated 14.12.2009 in ITA No.485(Asr)/2009 for the assessment year 1998-99 claiming following substantial questions of law:- “1. Whether on the facts and in the circumstances of the case, the Hon’ble ITAT Bench was justified in law and on facts in deleting the addition made by the AO on account of transaction of sale of jewellery without appreciating the evidence on record and the facts of the case. 2. Whether on the facts and in the circumstances of the case, the Hon’ble ITAT Bench was justified in I.T.A. No.830 of 2010 following the order dated 26.06.2009 in the case of Sh. 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 the Department on merits on the ground that it is perverse on facts and deficient in law. 3. Whether on the facts and in the circumstances of the case, the Hon’ble ITAT, Amritsar was justified in holding that as no appeal has been filed before the Hon’ble Jurisdictional High Court, against the order of the 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 the case of Sh. Rishi Grover prop. M/s Vishnu Jewellers, Amritsar, the decision of the Hon’ble Bench has been accepted by the Department and has become final. Whereas the decision of the ITAT, Amritsar in the case of Sh. Rishi Grover was not accepted by the Department on merits of the case, and appeal in this case was not filed keeping in view the instruction of the Central Board of Direct Taxes issued vide number 05/2008 dated 15-05-2008 and circulated vide letter F.No.279/Misc.142/2008 dated 15.05.2008 (whereby the monetary limit has been prescribed at Rs.4 lac for filing 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 Central Board of Direct Taxes and the circumstances under which such appeal was not filed in the case of Sh. Rish Grover, keeping in view the provisions of section 268A of the Income Tax Act, 1961. 4. Whether on the facts and in the circumstances of the case, the Hon’ble ITAT Amritsar was justified in following its order in the case of Shri Rishi Groveer, 2 I.T.A. No.830 of 2010 Proprietor M/s Vishnu Jewellers, Amritsar versus ACIT in ITA No.198 to 202(ASR)/2006 which in turn had followed the order of Special Bench of Hon’ble ITAT, New Delhi in the case of Sh. Manoj Kumar Aggarwal & Others versus DCIT which has been challenged before the jurisdictional High Court on the ground that it is ex-facie perverse. 5. Whether on the facts and in the circumstances of the case, the Hon’ble ITAT, Amritsar was justified in accepting the genuineness of sale of jeweler by the assessee when the assessee’s conduct was in direct conflict with test of normal human conduct as laid down by the Hon’ble Supreme Court in the cases of:- (i) Sumati Dayal Vs CIT (1995) 214 ITR 801(SC) (ii) CIT vs. Durga Prasad More (1971) 82 ITR 540 (SC)” Learned counsel for the revenue submits that the matter is covered by judgment of this Court dated 8.2.2011 in I.T.A. No.174 of 2009 in CIT v. Sh. Tejinder Singh HUF in favour of the revenue. Therein it was held that the case of the assessee was required to be individually gone into to ascertain genuineness of the claim for capital loss. The finding in the case of M/s Bemco/Manoj Aggarwal Jewellers (Bemco) and M/s Bishan Chand Mukesh Kumar (BCMK) could not have been mechanically relied upon. Accordingly, the matter was remanded to the Tribunal for fresh decision. 3 I.T.A. No.830 of 2010 None appears for the assessee inspite of service. Accordingly, we decide the questions in favour of the revenue in terms of earlier order of this Court dated 8.2.2011 in I.T.A. No.174 of 2009 in CIT v. Sh. Tejinder Singh HUF and remand the matter to the Tribunal for fresh decision in accordance with law. (ADARSH KUMAR GOEL) JUDGE March 28, 2011 ( AJAY KUMAR MITTAL ) ashwani JUDGE 4