9911796707
TMI Blog2003 (1) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... 961 (for short "the Act"), is directed against the order of the Income-tax Appellate Tribunal, New Delhi (for short "the Tribunal"), dated June 21, 2002, in I. T. A. No. 953/Delhi of 2002, pertaining to the assessment year 1998-99. The following questions, stated to be substantial questions of law, have been proposed in the appeal : "(a) Whether the Income-tax Appellate Tribunal was justified in law in deleting the addition of Rs. 8.01 crores made by the Assessing Officer on account of unexplained investment in the Mussoorie project under section 69B of the Income-tax Act ? (b) Whether the Income-tax Appellate Tribunal was correct in deleting the addition of Rs. 8.01 crores only on the ground that the statement made by counsel is not conclusive, altogether ignoring the other evidence gathered by the lower authorities? (c) Whether the Income-tax Appellate Tribunal was correct in holding that the statement made by the senior standing counsel in the proceedings other than income-tax proceedings before the court is not the statement at the Bar and is not conclusive? (d) Whether the Income-tax Appellate Tribunal was correct in holding that the addition under section 69B cannot be ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representatives of both the groups. The Mussoorie project was accordingly transferred to the said Avlon Resorts for a sum of Rs. 3,37,24,920 as, according to the assessee, it belonged to this company and they were doing only job work for them for which the assessee had charged a sum of Rs. 6,47,500 during the previous year, which was shown as income. However, some disputes had arisen between the assessee and Hotel Hans Private Limited, which were ultimately resolved by way of arbitration. It was stated that since the project was transferred during the previous year, inadvertently it was not reflected in the opening work-in-progress as well as closing work-in-progress and only the differential amount of Rs. 6,74,500 was taken in the profit and loss account. The Assessing Officer was not convinced with the explanation furnished by the assessee. Inter alia, observing that at no point of time the assessee was interested in carrying out the job work for and on behalf of Avlon Resorts and as per the memorandum of understanding the assessee was to develop and construct the property on their own, which was to be managed jointly, the Assessing Officer held that all the amounts spent for w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) A reading of the interim order of the High Court coupled with the observations of the Assessing Officer in the assessment order and then again in the remand report clearly shows that the major development in the property and the entire investment seems to have been done up to the period ending on March 31, 1997. In other words, the provisions of section 69B are not attracted since the assessment year under appeal is 1998-99 ; (iv) The assessee, i.e., the present appellant, before the Tribunal was not the only party to the Mussoorie project and one really wonders as to how the entire addition could be made in his hands and none of the other parties including Hotel Hans Pvt. Ltd., have been touched and this is going by the assumption that there was some investment outside the books of account. This fact has been emphasised even by the Assessing Officer in his remand report to the Commissioner of Income-tax (Appeals) ; (v) Hotel Hans Pvt. Ltd., is stated to be a 50 per cent. partner in the project and it has accepted a sum of Rs. 3.45 crores including Rs. 45,00,000 as compensation to opt out and it is the assessee's stand before us and which is not rebutted by the learned Dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roposed, it would appear that the Revenue has taken the stand that the addition was not based only on the stand of counsel in the High Court neither in the body of the petition nor before us has learned counsel for the Revenue been able to rebut the aforequoted finding of the Tribunal by pointing out as to what other material has been brought on the record by the Revenue in support of the addition in question. If it was felt by the Revenue that the said finding, essentially one of fact, was not factually correct, it was open to it to take recourse to appropriate remedy before the Tribunal for getting it corrected. But no steps in this behalf seem to have been taken. In that view of the matter we are not convinced with the argument of learned counsel for the Revenue that the Tribunal has failed to take into consideration the relevant material, rendering its aforenoted findings as perverse. Therefore, the only question which now survives for consideration is as to whether the Tribunal was justified in taking the view that a mere statement of counsel before the High Court in civil litigation between the parties was not conclusive and the material placed on record by the assessee had ..... X X X X Extracts X X X X X X X X Extracts X X X X
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