9911796707
TMI Blog2002 (7) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... commission received by the assessee was not part of the turnover. However, the CIT(A) rejected the claim of the assessee by observing that in the earlier years also, the assessee has been including the amount of commission in the total turn over and, therefore, the exclusion of the same from the total turn over in the year under consideration was not justified. The assessee is in appeal before us against the order of the CIT(A). It is argued by the learned counsel that whether a particular income was includible in the turn over or not, was a question of law. The Special Bench of the Tribunal in the case of International Research Park Lab. reported in 50 ITD 37 has held that the commission received was not part of the turn over. It was stated that in view of this decision, the claim was made before the CIT(A) which was rejected. While relying on the decision reported in 158 ITR 574 (SC), the learned counsel stated that there was no estoppel against the law. As the law has been laid down by the Special Bench, the same should be followed. 4. On the other hand learned DR while relying on the Tribunal s decision for the assessment year 1989-90 in the case of the assessee stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 80-HHC of the Act. He also stated that in the computation or income, the Assessing Officer himself has taxed the income under the head business income but while allowing deduction under section 80-HHC or the Act, such income has been treated as income from other sources . While relying on the decisions reported in 54 ITD 62 (Cal.), 76 ITD 282 (Jodhpur) and 73 ITD 77 (Amritsar), the learned counsel stated that the interest received from the bank on the FDRS placed for opening the L.C. was business income and should be included for the purposes of deduction under section 80-HHC, of the Act. It was also stated that the assessee has also paid interest to various persons. If the interest paid was netted against the interest received, there will be no positive interest income and, therefore, deducting the same, from business income for the purposes of deduction under section 80-HHC was not justified. The reliance was placed on the decision reported in 77 ITD 123 (Delhi) and 72 ITD 137 (Bom.). It was also argued that the CIT(A) has rejected the claim of the assessee on the ground that no such claim was made before the Assessing Officer. It was stated that the claim made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the cost of construction at Rs. 22,21,604 up to assessment year 1991-92. He added the differential amount to the income of the assessee. 12. On appeal, the addition was almost confirmed by the CIT(A), inasmuch as, only a minor relief was granted by the CIT(A). 13. The assessee is in appeal before us against the findings of the CIT(A). 14. It is argued by the learned counsel that it was the admitted position that the cost of construction declared to various years. Thus difference, if any could not have been brought to tax in the year under consideration only. As no bifurcation has been given by the Assessing Officer CIT(A) the addition sustained by the CIT(A) was illegal. It was also stated that the entire details of construction was maintained and produced before the Assessing Officer. Even in para 2 of his order, the Assessing Officer has mentioned so. It is settled law that unless any defects or variations have been found out by the Assessing Officer in the cost of construction declared by the assessee no addition on account of suppressed investment in the construction would be made. The reliance was placed on the decisions reported in 200 ITR 788 (Raj.) and 27 ITD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of electrical fittings etc. was estimated at Rs. 75,000, the assessee has disclosed the investment of Rs. 1.98 lakhs. It does not mean that the assessee has met the additional cost from extra sources. It was the question of opinion but the fact remains that the total cost of investment disclosed by the assessee was supported by the valuation report. The Hon ble Rajasthan High Court in the case reported in 200 ITR 788 has held that if the entire cost of construction has been regularly maintained and no defect in the same was found the assessee s version regarding investment in the construction has to be accepted. The same view was taken by the Delhi Bench of the Tribunal (TM) in the case reported in 7 ITD 11. On the basis of these facts, we hold that the addition sustained by the CIT(A) is not justified and the same is deleted. 20. Ground No. 4 related to the addition of the cost of land on which the construction took place. It was stated that the cost of land on which the construction of the house has taken place has not been disclosed by the assessee. Against the addition, the appeal was filed which was also dismissed by the CIT(A). 21. In appeal before us, the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
