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TMI Blog2019 (2) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 ITR 532 and the High Court at Bombay in the case of Mehboob Productions Pvt. Ltd. 106 ITR 758 that the burden to show that a receipt is of an income nature, is on the Revenue. It is submitted that based upon it, it was pleaded that the reason recorded by the A.O. for alleged escapement of income without showing how the amount receivable as per the arbitration award could be of an income nature. In this regard, it has been submitted that the tribunal has considered the Hon'ble Apex Court decision in the case of CIT vs. Rajesh Jhaveri Stock Brokers P. Ltd. (291 ITR 500) and DCIT vs. Zuari Estate Development and Investment Co. Ltd. 373 ITR 661. Further, it has been submitted that the ld. Counsel of the assessee's reliance upon the Hon'ble Bombay High Court decision in the case of Prashant S. Joshi vs. ITO 324 ITR 154 and Khubchandani Healthparks Pvt. Ltd. vs. ITO 384 ITR 322 has not been considered by the ITAT. Hence, it is the plea of the assessee that since the A.O. had not discharged the burden placed on him and shown how the said amount as per the arbitration award could be regarded as her income, the reasons recorded before reopening the assessment was invalid. 3. Per cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , when no option on the issue was formed in the first place. In this regard, in our considered opinion, the ld. Commissioner of Income Tax (Appeals) has passed a reasonable order by appreciating the facts and law in this regard. The reliance by the ld. Commissioner of Income Tax (Appeals) upon the decision of Hon'ble Apex Court in the case of DCIT vs Zuari Estate Development & Investment Co. Ltd [2015] reported in 63 taxmann.com 177 (SC) and the decision of the Hon'ble Apex Court in the case of Assistant Commissioner of Income Tax v. Rajesh Jhaveri Stock Brokers P. Ltd. reported in (2007) 291 ITR 500 are germane and duly support the case of the Revenue. The decisions referred by the ld. Counsel of the assessee are distinguishable on facts and moreover, since the reopening has to be found to be valid on the touchstone of the above Hon'ble Apex Court decisions, the decisions referred by the ld. Counsel of the assessee do not oxygenate the case of the assessee. Hence, in the above factual scenario and the case law of the Hon'ble Apex Court, we are of the considered opinion that the ld. Commissioner of Income Tax (Appeals) has passed a reasonable order upholding the validity of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able on record. It has further been submitted that by ground nos. 9 & 10, the assessee inter alia urged that the ld. CIT(A) erred in holding that the arbitration award has been received in lieu of a composite bundle of right. It has further been submitted that vide ground no. 12, the assessee urged on without prejudice basis that the amount received by the assessee was not wholly and exclusively received on her retirement from the partnership firm of P. N. Writer & Co., That the Revenue has not established how the said receipt was of an income character. It has further been submitted that it was also required to consider what the component of amount would relate to rights under father's will and/ or family settlement and taxability thereunder. It has been further submitted that the entire receipts also cannot be recorded as 'income' under the hands of the recipient. It has further been submitted that the A.O. as well as the ld. CIT(A) and the tribunal have referred to the statement of Denzil D'Souza and since his cross examination was not permitted, reliance upon the same is a mistake apparent from the record. 8. Per contra, the DR submitted that all the submissions and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rolled by the partners. (v) Condition No.9 of Consent Terms stated that the appellant and her husband Etienne Pinto had no interest in properties listed in clause 9 and they would ensure execution of necessary documents for transfer of properties which presently stood in their names in favour of existing partners. This condition had no reference with the retirement of the appellant from the partnership firm. (vi) As per condition no.12, the appellant's husband was also required to sign the Consent Terms in acceptance of his obligations as set out in the Consent Terms. Though her husband had no relation to M/s P.N.Writer & Co., it was agreed that the husband shall also sign Consent Terms and shall also transfer back assets mentioned in condition no.9 which was in the name of the appellant as well as in the name of her husband. 22. When the above facts are viewed in the light of the fact that there are no positive balance of the capital account of the assessee with M/s. P. N. Writer & Co., the question of the balance in her capital account being returned back to her certainly does not arise. The above facts clearly indicate that the arbitration award was received by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the net asset of the firm and has generally stated that it was based on the market value of the asset of the firm. Before the ld. Commissioner of Income Tax (Appeals) also no detail working has been given except for submitting the valuation report of the assets by way of additional evidence. 24. Thus from the above, it is clear that neither the Arbitration award nor the concerned terms made any mention or a declaration or a decision for a finding that the assessee retired from the firm in the year 1997. Neither does the Arbitration Award or Consent Terms anywhere specify that the sum of Rs. 28 crores represents the payment to the assessee for her retirement from P.N.Writer & Co. As a matter of fact, the basis of the Arbitration Award was never given. As rightly observed by the ld. Commissioner of Income Tax (Appeals) that the retirement of a partner from the firm has to be an evident fact and is not required to be indirectly inferred or to be guessed in substance. The assessee has received a consideration in lieu of a composite bundle of conditions which included giving up her rights and interests in assets which have no connection with her interest in the firm or its assets an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ackground of the aforesaid discussion and precedent we do not find any infirmity in the order of the ld. Commissioner of Income Tax (Appeals). Accordingly, we uphold the same. 10. Upon careful consideration, we note that all the issues raised in these miscellaneous applications have been considered by the Tribunal. As regards the issue on non consideration of the valuation report submitted by the assessee is concerned, we note that the same was duly considered and found to be not acceptable at paragraph nos. 23 and 24 above. Further, all the issue on merits referred above has been duly answered in the order by the ITAT. 11. As regards the submission regarding reliance by the ITAT on the statement of Denzil D'Souza, it is found that nowhere in its order on adjudication of the merits, the ITAT has relied upon its statement of Denzil D'Souza. It is the matter of fact that the ld. CIT(A) in his order reproduced in the ITAT order has referred that a copy of the statement of Denzil D'Souza was duly given to the assessee and that the statement given by Denzil D'Souza was just an affirmation of what had already gathered by the A.O. from the facts on record. 12. 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