TMI Blog2020 (1) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has not been able to produce the original deed of arbitration. The Tribunal therefore, has doubted the genuineness of the entry made in the books of accounts by the appellant to the tune of ₹ 54,00,000/-. Ordinarily, we would have dealt with the issue in this appeal itself. Since the revenue has disputed the genuineness of the entry made in the books of accounts, therefore, we are not inclined to decide the issue whether the Tribunal was justified in confirming the addition of ₹ 54,00,000/- in respect of demurrages for delay in execution of the project. The Tribunal has failed to take into account the remand report of the Additional Commissioner of Income Tax and joint venture agreement dated 19.09.1992. We deem it a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) Whether the Tribunal was correct in law in holding that the joint development agreement does not constitute an Association of persons and consequently the income is liable for assessment under the status of association of persons? 3. The appellant is a partnership firm which is engaged in the business of real estate development, construction and sale of flats under the name and style of The Estate . The appellant filed its original return of income declaring its total income of ₹ 95,04,431/- on 31.10.1997 and subsequently on 31.03.1998 filed revised return declaring the same income with some changes in the balances of sister concerns in the balance sheet. The case of the appellant was selected for scrutiny by the Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or counsel for the appellant submitted that the authorities failed to take into account the joint venture agreement dated 19.09.1992. It is submitted that as per the agreement with the owners, the appellant was supposed to deliver their share of buildings on or before 30.06.1995, however, actual delivery took place on 30.09.1996. It is also pointed out that under the agreement the owners were entitled to a sum of ₹ 12,000/- per day of delay that is an amount of ₹ 3,60,000/- per month. There was a delay of 15 months in completion of the project and therefore, the owners were entitled to total demurrages for delay in execution of the project to the tune of ₹ 54,00,000/-. Our attention has also been invited to clause 4 of joi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eventually results in reduction of profits to that extent. In support of aforesaid submission, learned counsel for the appellant has placed reliance on the decisions in the case of CALCUTTA CO. LTD Vs. CIT 37 ITR 1(SC), BHARAT EARTH MOVERS Vs. CIT 245 ITR 428 (SC), METAL BOX COMPANY OF INDIA LTD Vs. THEIR WORKMEN 73 ITR 53 (SC), JIWANRAM SHEODUTTRAI Vs. CIT 279 ITR 512 (Cal), CIT Vs. BURHWAL SUGAR MILLS CO. LTD. 82 ITR 784 (ALL) AND SASSOON J DAVID AND CO. P LTD Vs. CIT 118 ITR 261 (SC). 6. On the other hand, learned counsel for the revenue has taken us through the order of assessment and has submitted that the appellant failed to avail of the opportunity of cross-examination which was afforded to it. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 54,00,000/- in respect of demurrages for delay in execution of the project. The Tribunal has failed to take into account the remand report of the Additional Commissioner of Income Tax and joint venture agreement dated 19.09.1992. 8. Therefore, we deem it appropriate to set aside the order passed by the Income Tax Appellate Tribunal. Needless to state that it would be open to the Tribunal to pass such order as it may deem fit in accordance with law. The Tribunal, after affording an opportunity of hearing to the parties, shall decide the appeal preferably within a period of three months from the date of receipt of the certified copy of the order passed today. It is also clarified that this Court has not expressed any opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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