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TMI Blog2015 (11) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... reinbelow for adjudication : Assessment year 2009-10 (i) The learned Commissioner of Income-tax (Appeals) had erred in confirming the addition of Rs. 2,50,00,000 being token advance received by the appellant from UTV Motion Pictures. (ii) The learned Commissioner of Income-tax (Appeals) had erred in adding a sum of Rs. 92,25,750 received from Photon Factory and Rs. 1,11,50,000 received from AVM Production as income of the assessee ignoring the fact that the said amount was already declared as income for the earlier assessment years. Assessment year 2010-11 (i) The learned Commissioner of Income-tax (Appeals) had erred in enhancing the taxable income by Rs. 1,50,00,000 received by the appellant from Red Giant. (ii) The learned Commissioner of Income-tax (Appeals) had erred in confirming the addition of Rs. 4,31,900 being the value of cement received from M/s. Bharathi Cements. (iii) The learned Commissioner of Income-tax (Appeals) had erred in confirming the addition of Rs. 34,30,000 towards the value of gold jewellery. 3. The brief facts of the case are that the assessee is engaged in the profession of acting in motion pictures, filed his return of income for the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Pictures (Mauritius) Ltd., till date. (vi) As per the agreement the appellant has a right to receive Rs. 2.5 crores on or before June 28, 2008 which was duly paid to him. (vii) Reliance was placed on the decision of the hon'ble jurisdictional High Court in the case of Lakshminarayana Films v. CIT [2000] 244 ITR 344 (Mad). 5. The learned authorised representative vehemently argued before us by stating as follows : (i) The assessee has entered into an agreement with M/s. UTV Software Communications Ltd. vide agreement dated June 17, 2008 wherein all the terms and conditions were specified. (ii) As per the terms of the agreement, the amount of Rs. 2.5 crores was paid to the assessee on June 25, 2008 by wire transfer as an advance. (iii) The total consideration for complying with the obligations specified in the agreement was Rs. 5 crores, which was to be paid in instal ments on specified period stipulated in the agreement. (iv) The script and title of the motion picture, in which the assessee has to perform has not been finalised as on the date of the agreement, however token advance was received as a mark of commitment in the project and to make himself available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d water, because even in cash system of accounting the advance received cannot be treated as income. The advance received will remain as advance received until the same has crystallised as income to the assessee, i.e., on the fulfilment of the conditions stipulated in the agreement. The learned Departmental representative had relied on the decision of the hon'ble Madras High Court in the case of Lakshminarayana Films v. CIT [2000] 244 ITR 344 (Mad), however we find that the conditions stipulated in the agreement in that case is not identical to the conditions laid down in the agreement executed by the assessee. In the case of the assessee, advance of Rs. 2.5 crores was received for future performance and there were specific conditions stipulated in the agreement for refund of the same, if the assessee fails to comply with the conditions. On the identical situation for the assessment years 2004-05, 2005-06 and 2006-07, the Tribunal in the assessee's own case in I. T. A. Nos. 1329/596 & 597/Mds/2009 dated January 19, 2010 and August 21, 2009 respectively held the issue in favour of the assessee wherein also the decision of the hon'ble Madras High Court in the case of Laks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D. Meena ; the former case was decided relying on the latter decision. If we advert to the decision of D. Meena's case, there the assessee who was also a cine artist, had received advance on the basis of a contract for acting in a film. In other words, there was a subsistent contract for acting in a particular film, whereas in the given case the advances were received from two parties with no clear crystallisation of film or the storyline or other aspects of the proposed film. Hence, we are of the opinion that D. Meena's case (supra) is not applicable here on facts. In any event, since this Tribunal had taken a view in favour of the assessee in the assessee's own case for the earlier years, on similar fact situation, we find no compelling reasons to depart from the view taken earlier. Therefore, we find that amount of Rs. 55 lakhs received by the assessee as advance could not have been treated as his income for the impugned assessment year. Such addition stands deleted. Grounds Nos. 2 to 9 of the assessee are allowed." 10. From the above discussions and from the ratio laid down in the assessee's own case from the assessment years 2004-05, 2005-06 and 2006-07, we he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment year 2011-12, however the learned Commissioner of Income-tax (Appeals) directed the learned Assessing Officer to treat the abovesaid amount as income of the assessee during the relevant assessment year and thereby enhanced the income. 13. The learned authorised representative argued before us stating that the facts of the case is identical to the facts of the case for the earlier assessment year wherein the Revenue has treated the advance received by the assessee for Rs. 2.5 crores from UTV Motion Pictures (Mauritius) Ltd., as income of the assessee. The learned authorised representative further submitted that the decision of the Tribunal on that issue will be applicable in this case also. The learned Departmental representative on the other hand argued in support of the orders of the Revenue. 14. After hearing both sides, we hereby remit the matter back to the file of the learned Assessing Officer to examine the agreement executed by the assessee with M/s. Red Giant and pass appropriate order as per law and merits and in the light of the decision rendered by us with respect to the advance received by the assessee for Rs. 2.5 crores from UTV Motion Pictures (Mauritius) Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alue of jewellery amounting to Rs. 5,60,000 acquired from known source of income. Before us, the learned authorised representative, submitted that the father of the assessee Shri R.Sivakumar, is an eminent artist and he and his family had sufficient declared source of income for acquiring the jewellery of the value Rs. 39,90,000. It was therefore pleaded that the addition may be deleted. The learned Departmental representative on the other hand argued in support of the orders of the Revenue. 17. We have heard both parties and carefully perused the materials available on record. It is a well-known fact that Shri R. Sivakumar is an eminent personality in the city of Chennai and Tamil Nadu for decades. In these circumstances, it cannot be doubted that the family cannot accumulate jewellery worth Rs. 39,90,000 over a period of time being either purchased from own declared source of income or received as gifts during marriage functions, etc. Shri R. Sivakumar has also admitted during the course of search that he possessed 400 sovereign grams of gold jewellery. It is also pertinent to note that the learned Assessing Officer had made the addition without examining the veracity of the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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