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TMI Blog2012 (2) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... nd proceed to pronounce the decision on the aforesaid question. 5. The assessee is the owner of land and building known as Sea Rock Hotel. In November, 1978, the assessee entered into a lease contract agreement with ITC Ltd. As per the terms of the agreement, it was entitled to license fee @ 23% of the turnover. There is no dispute that the license fee received by the assessee was offered to tax and was taxed under the head "income from business" till 12th March, 1993. On the said date, the property got affected in serial bomb blast. It appears that thereafter disputes arose between ITC Ltd. and the assessee, on who was liable to carry out the repairs of the damaged portion of the structure and on other related issues. 6. In the returns f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.5.2005 and the consent agreement between the assessee and ITC Ltd. was filed before Sole Arbitrator Justice H. Suresh and a consent award was passed on 24th May, 2005. The relevant part of the agreement relevant to the issue in hand is that ITC Ltd. need not make payment of hotel operator fees to the assessee for the legal dispute period of 13 years. The award does not provide any payment by M/s. ITC Ltd. to the assessee company including hotel operatorship fees under the hotel operatorship agreement dated 3.5.1996. Further, as per clauses 11 and 14, it is clear that the assessee company is/shall not be entitled to any further amount towards hotel operatorship agreement. 9. From the above facts, it is clear that the assessee's right to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of the fact that the assessee was allowed depreciation on the hotel building and in view of the said position the tax effect was negligible. 12. With regard to the assessment year 2003-04 and 2004-05, the assessee succeeded before the first appellate authority. The Revenue preferred appeals before the tribunal but have not succeeded and have accordingly filed ITA Nos.504/2010 and 545/2010 which relate to assessment years 2004-05 and 2003-04. 13. On 28th February, 2007, the Revenue had conducted search under Section 132 of the Act on the assessee. As a consequence of the said search, proceedings under Section 153A of the Act were initiated. In the assessment order passed under Section 153A, similar additions on account of license fee @ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d unilateral termination of the agreement by the assessee. The date on which the so-called unilateral termination was affected has also not been stated. There is no discussion on these aspects and whether or not any amount was received or paid to by the respondent-assessee during this period. We cannot as an appellate court under Section 260A for the first time go into the said factual aspects. It is apparent that there are contentious and counter-submissions on the factual matrix, which have to be examined and gone into by the tribunal itself. It is for the tribunal to examine and go into the said factual matrix, examine the relevant clauses of the agreement between the assessee and the ITC Ltd., consider the claim regarding unilateral ter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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