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TMI Blog1994 (5) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-86, 1986-87 and 1987-88 and come to the conclusion that the assessment orders passed therein were erroneous and prejudicial to the interests of the Revenue ? 2. Whether the Income-tax Appellate Tribunal acted within its jurisdiction when it entertained the assessee's ground that consultancy fee had accrued to the assessee only in the assessment year 1988-89 when the Commissioner of Income-tax in paragraph 10.1 of his order had held that the new stand taken by the assessee resiling from the earlier stand did not relate to the proceedings under section 263 of the Income-tax Act and that the submissions made in that behalf were extraneous to the proceedings under section 263 which related to the assessment years 1985-86, 1986-87 and 1987-88 ? 3. Whether, while deciding the appeals of the assessment years 1985-86, 1986-87 and 1987-88 against the orders made under section 263, setting aside the assessments made in those years to be made afresh in accordance with law, the Income-tax Appellate Tribunal had jurisdiction to hold that the assessee's income from consultancy fee (which has been voluntarily offered by the assessee for assessment in those years and whose assessments were n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f those clearly provided that 'no amendment or addition to this agreement shall be effective unless agreed upon by the parties hereto in writing' ? 9. Whether the Income-tax Appellate Tribunal was justified in law in interpreting the two agreements dated August 30, 1984, and November 5, 1984, in the manner it did by taking aid of procured and self-serving evidence and by ignoring the above mandatory terms of the two agreements which forbade any amendment or addition to the agreement unless agreed upon by the parties in writing (as was done by them when they, just for making a minor change in the agreement, executed an addendum to the agreements on June 24, 1985) ? 10. Whether, when the Income-tax Appellate Tribunal had itself held that the matter contained in letters dated June 4, 1984, and July 23, 1984, stood superseded, it was justified in law in saying that letters subsequent to the dates of agreements could be considered even though those went against the tenor of the agreements dated August 30, 1984, and November 5, 1984, which were self-contained codes incorporating all the terms of the agreement between the assessee and Sumitomo Corporation ? 11. Whether, when the agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e direction that those be reframed de novo in accordance with law after making proper enquiries in the light of facts and circumstances of the case, the Income-tax Appellate Tribunal was justified in law in prejudging the issues which had to be decided only by the Assessing Officer at the time of making fresh assessments and which had not in fact been decided by the Commissioner of Income-tax in his order under section 263 ? 17. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was correct in law in modifying the observations of the Commissioner of Income-tax and foreclosing the enquiry by the Assessing Officer even in respect of issues where lack of enquiries on the part of the Assessing Officer had rendered the order erroneous and prejudicial to the interests of the Revenue ? 18. Whether the order of the Income-tax Appellate Tribunal was not perverse in law and contrary to law laid down by jurisdictional High Court in the case of Gee Vee Enterprises v. Addl. CIT [1975] 99 ITR 375 (Delhi) ? 19. Whether the Income-tax Appellate Tribunal was justified in law in ignoring or not considering in proper perspective the submission of the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate Tribunal was legally correct in holding that the Commissioner of Income-tax was not right in coming to the conclusion that the facts of the case ought to have provoked enquiry on the point of accrual of interest on amounts which during the concerned period, remained deposited in the specified account of London Bank ? 27. Whether the Income-tax Appellate Tribunal was correct both in facts and in law in holding that the Commissioner of Income-tax was not right in holding that due enquiry was not made on the share application money of Rs. 1,98,68,081.75 as stated to have been received from Eljay Consultants Inc. ? 28. Whether the Income-tax Appellate Tribunal was correct in law in holding that the Commissioner of Income-tax was not right in his observations that the receipt of the assessee-company on January 31, 1985, from Eljay Consultants Inc. which had a very paltry capital of its own, had not been enquired or looked into by the Assessing Officer and that for that reason the order of that assessment year was erroneous and prejudicial to the Revenue ? 29. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was correct in law a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two agreements dated August 30, 1984, and November 5, 1984, with the said Corporation agreeing to act as its consultants in respect of the tenders floated by the Oil and Natural Gas Commission (for short, "the O. N. G. C.") for the supply of saw line pipe and seemless casino pipe to the Gas Authority of India and the Oil and Natural Gas Commission, respectively. The mode and time of payment of consultancy fee was prescribed in the said agreements. Originally, the entire consultancy fee under the said agreements was included by the assessee in its return for the assessment year 1987-88 for which the previous year ended on January 31, 1987. Subsequently, the assessee wrote to the Commissioner of Income-tax requesting that the entire consultancy income be spread over three years, namely, the assessment years 1985-86 to 1987-88, and appropriate immunity from the levies of penal interest and penalty be granted. For this purpose it filed petitions under section 273A of the Act. The Commissioner, it appears, agreed for waiver of interest chargeable under sections 139(8) and 217 of the Act and for dropping the penalty proceedings. Before the said order was passed by the Commissioner, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome-tax Appellate Tribunal, where it reiterated its stand that income from Messrs. Sumitomo Corporation accrued to it only on receipt of money in India on September 11, 1987, and therefore, the whole of it was taxable in India only in the previous year to which the date of receipt related, viz., the assessment year 1988-89 and not in the earlier assessment years. It was contended that no prejudice would be caused to the Revenue if the assessment is made in the manner now suggested even though earlier assessments were made on the basis of the returns filed by the assessee in terms of the agreement arrived at with the Commissioner. The Tribunal, vide its common order for the said three assessment years, came to the conclusion that : (i) the grant of depreciation on aircraft at 40 per cent. was erroneous and to that extent the jurisdiction of the Commissioner of Income-tax under section 263 was properly exercised ; (ii) the aforesaid agreements clearly provided that consultancy fee was to be remitted by Sumitomo Corporation to a designated account of Eljay Consultants in the Bank of Credit and Commerce in London and the position of Messrs. Eljay Consultants was that of a confidante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issues raised in this application stand answered conclusively either by the Supreme Court or this court. Even otherwise, at this stage we are not called upon to pronounce upon the correctness or otherwise of the view taken by the Tribunal. What we have to consider is whether a question of law, fit for consideration by this court, arises from the order of the Tribunal or not. We are constrained to observe that while arriving at the conclusion that the main question whether consultancy fee from Messrs. Sumitomo Corporation accrued in the previous years relevant to the assessment years 1985-86 to 1987-88 or the assessment year 1988-89, was a finding of fact, the Tribunal perhaps lost sight of the fact that this finding was arrived at by it on an interpretation of the various clauses of the aforesaid two agreements dated August 30, 1984, and November 5, 1984, and various other letters referred to in its order. In fact, in paragraph 7.4 of its order, the Tribunal has itself observed that "the accrual of income depended upon the interpretation of the contract". Where the determination of a question involves interpretation of documents, a question of law does arise. We are of the view t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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