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TMI Blog2012 (4) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... condoned. 3. Application is disposed of. ITA 401/2011 4. The present appeal filed by the Revenue under Section 260A of the Income Tax Act, 1961 (Act, for short) impugns the order dated 23.10.2009 passed by Income Tax Appellate Tribunal (Tribunal, for short) in the case of Bharti Overseas Trading Co., a partnership firm, respondent herein. The assessment year in question is 2004-05. 5. On 16.1.2012 following order was passed : "Two issues have been raised in the present appeal which pertains to the assessment year 2004-05 in the case of a partnership firm M/s. Bharti Overseas Trading Co. The said partnership firm consists of two partners who are also shareholders of Bharti Enterprises Pvt. Ltd. 2. The Assessing Officer held that Rs. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue submits that the order passed by the Tribunal is perverse. He has drawn our attention to the assessment order which records that property No.D-819, New Friends Colony, New Delhi was originally owned by Deepika Mittal, wife of one of the partners. By the Agreement to Sell dated 25th February, 2000, the property was agreed to be sold to the partnership firm i.e. the respondent-assessee for Rs.3,15,00,000/-. Subsequently, vide an agreement dated 2nd May, 2003 the respondent-assessee sold the property in favour of M/s. Shitiz Metals Ltd. for consideration of Rs.2,40,00,000/-. The assessment order refers to certain factual aspects including the return filed by Deepika Mittal assessment year 2001-02 etc. It is submitted that Deepika Mittal ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts/evidence are not filed, we may have no option but to dismiss the appeal on this ground for failure to produce the relevant documents/evidence. 10. List on 15th February, 2012." 6. On 15.2.2012, we recorded the contentions of the parties on the second aspect. Mr. Kamal Sawhney, ld. senior standing counsel during the course of arguments had submitted that the respondent-assessee had paid Rs.50 lacs when the agreement to sell dated 25th February, 2000 was executed for purchase of the property No.D-819, New Friends Colony, New Delhi from Smt. Deepika Mittal. He had submitted that the balance amount of sale consideration i.e. Rs.2.65 crores was never paid to Deepika Mittal by the respondent-assessee. He had drawn our attention to the fact t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said computation, it is specifically stated that the total sale consideration received in April, 2000 was Rs.3.15 crores. 10. It is clear from the aforesaid that the stand and contention of the Revenue that Rs.2.65 crores was not paid to the respondent-assessee to Deepika Mittal is factually wrong and incorrect. The Revenue should have examined and verified the records before raising the said contention in this appeal. 11. We may record here that the Assessing Officer vide noting made on letter dated 20th November, 2006 had recorded : "Ld. AR of the assessee is required to establish how the sale consideration value was reached as well as to comment whether sale by firm was "a slump sale". Alternatively, it needs to be placed on recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in Commissioner of Income Tax Vs. National Travel Services (2011) 14 Taxmann.com 14 (Delhi). In these circumstances, accordingly, we frame the following substantial question of law : "Whether the Income Tax Appellate Tribunal was right in holding that Section 2(22)(e) of the Income Tax Act, 1961 is not applicable on the ground that the partnership firm i.e. the respondent-assessee was not a shareholder in Bharti Enterprise Pvt. Ltd.?" 14. In view of the decision of this Court in National Travel Services (supra), the aforesaid question is answered in favour of the Revenue and against the respondent-assessee. We may note that the respondent-assessee had raised a contention that the payment of Rs.2,13,84,360/- was not out of accum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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