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TMI Blog2003 (1) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... "(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? ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s closing work-in-progress of the Mussoorie project. However, the same amount did not appear as pending work-in-progress as on April 1., 1997, in the balance-sheet of Empire Builders for the period ending March 31, 1998. Nor did it appear as sales made during the year ending March 31, 1998. The assessee was required to explain as to why the sale value of the closing stock in progress be not treated as its undisclosed income. In response thereto, it was explained by the assessee that Empire Builders had entered into an agreement dated February 2, 1996, with one Hotel Hans Private Limited for undertaking the development of a time share project in Mussoorie jointly. The same was to be initially started between the said two concerns. In terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7, acquisition of land, improvement in right/title of the land and other miscellaneous expenses (duly supported by bills, etc.), totalling Rs. 2,92,79,574, were by the assessee itself, and, therefore, the property belonged to it. After holding so, the Assessing Officer proceeded to determine the quantum of the total investment by the assessee in the said project. Though the Assessing Officer noticed that a sum of Rs. 29,27,952 was accounted for in the books of the assessee as on March 31, 1997, but in the month of May, 1997, senior counsel for the assessee had made a statement before the High Court in 0. M. P. No. 13 of 1997 (proceedings arising out of the arbitration award) that the assessee had invested a sum of Rs. 13 crores in the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a figure which was anywhere in the region of Rs. 13 crores as the cost of construction / investment in property ; (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also purported to have made an offer to the Department to have the property inspected so as to confirm for themselves as to what would be the probable investment thereof." Relying on the remand report of the Assessing Officer, the Tribunal has also recorded a finding that the only basis for making the said addition was the statement of senior counsel before the High Court. Hence, the present appeal. We have heard Ms. Prem Lata Bansal, learned senior standing counsel for the Revenue. It is vehemently submitted by learned counsel that the Tribunal has misdirected itself in not taking into consideration the other material which had been referred to by the Assessing Officer while making the addition in question. It is urged that the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 bearing on the question of investment in the property in question. There is no gainsaying that to invoke the provisions of section 69B of the Act, the burden is on the Revenue to prove that the real investment exceeds the investments shown in the books of account of the assessee. As observed by the apex court in K. P. Varghese v. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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