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TMI Blog2007 (2) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... remaining from the withdrawal from his bank account from time to time and a sum was received by cheque No. 345947 and the assessee has furnished cash flow statement to this effect also. It has been held by the Tribunal that in the instant case the withdrawals shown by the assessee are far in excess of the cash found during the course of search proceedings. No material has been relied upon by the Assessing Officer or the CIT(A) to support their view that the entire cash withdrawals must have been spent by the assessee and accordingly, the Tribunal rightly held that the assessment is legally not sustainable u/s 158BC of the Act and the same was rightly ordered to be deleted. Thus, no fault can be found with the view taken by the Tribunal. Thus, the order of the Tribunal does not give rise to a question of law, much less a substantial question of law, to fall within the limited purview of section 260A of the Act, which is confined to entertaining only such appeal against the order which involves a substantial question of law. Accordingly, the present appeal is, hereby, dismissed. - Madan B. Lokur And V. B. Gupta JJ. For the Appellant : R. D. Jolly For the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese issues, the appeal of the assessee was dismissed by the Commissioner of Income-tax (Appeals). 5. Against the order of the Commissioner of Income-tax (Appeals), the assessee filed an appeal before the Income-tax Appellate Tribunal which was decided in favour of the assessee vide the impugned order. 6. It is argued by learned counsel for the Revenue that the impugned order of the Tribunal is liable to be set aside as the Tribunal has failed to appreciate that the agreement was complete after the same was signed by the vendor and the vendee. Secondly, documents were seized from the premises of the assessee and it was for the assessee to satisfactorily explain about the documents but the assessee has not given satisfactory explanation about the receipt of earnest money. Further, the assessee has not been able to prove the source of the cash found from his bed room nor could he furnish satisfactory explanation about the same. It is also contended that the order of the Income-tax Appellate Tribunal is perverse as it has relied upon the decision of the apex court in the case of the Dhakeswari Cotton Mills Ltd. v. CIT [1954] 26 ITR 775 which is not applicable to the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if the court is satisfied that the case involves such a question. The proviso pre supposes that the court shall indicate in its order the substantial question of law which it proposes to decide even if such substantial question of law was not earlier formulated by it. The existence of a 'substantial question of law' is thus, the sine qua non for the exercise of the jurisdiction under the amended provisions of section 100, C.P.C. 11. Similarly in a decision of this court reported as Mahavir Woollen Mills v. CIT [2000] 245 ITR 297, the meaning of substantial question of law has been explained. It was held (page 300) : The issue raised by the assessee in the appeal cannot be said to involve any question of law, much less a substantial question of law. A question of fact becomes a question of law, if the finding is either without any evidence or material, or if the finding is contrary to the evidence, or is perverse or there is no direct nexus between the conclusion of fact and the primary f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled legal position in respect of Income-tax assessment proceedings that although strict rules of Evidence Act do not apply to Income-tax proceedings, assessments cannot be made on the basis of imagination and guess work. Reference in this respect may be made to the judgment of the hon'ble Supreme Court in the case of Dhakeswari Cotton Mills Ltd. v. CIT [1954] 26 ITR 775 and a host of the Supreme Court and the High Court\qs judgments thereafter on the subject. We, there fore, direct deletion of the sum of Rs. 17,00,892 assessed by the Assessing Officer by way of half share of the assessee in the alleged earnest money. 13. It is an admitted fact that the present assessee had not signed the agreement in question and since the assessee had not signed the agreement, no liability can be attributed qua that agreement towards the assessee since he is not party to the agreement till he had signed the same. The mere fact that this agreement was found in the possession of the assessee does not lead us anywhere. We find no hesitation in holding that this addition of Rs. 17,00,892 made by the Assessing Officer is based on surmises and guess work and on this point the case of Dhakes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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