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TMI Blog2009 (2) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... erable from the appellant has been found to be Rs.6,45,436/-. The assessment order passed by the respondent No.1 also intimates the appellant about initiation of penalty proceedings u/s 271(1) (c) of the Act of 1961. The appellant being aggrieved of the said assessment order filed first Statutory Appeal before the Commissioner of Income tax (Appeals). The Commissioner of Income tax (Appeals) vide its order dated 17.01.08 accepted the appeal to the extent of deleting an addition of Rs.80,000/- on account of income under the head salary, which was assessed by respondent No.1 in his assessment order. The appeal in respect of income as assessed to tax from un-disclosed sources in the amount of Rs.14, 67,137/- was dismissed. 3. The appellant being still aggrieved of the order of Commissioner of Income tax (Appeals) challenged the same by filing an appeal before the Income tax Tribunal (Amritsar) Bench, which appeal was dismissed by the said Appellate Tribunal on 30th Oct. 2008. 4. The appeal is creature of the Statute and appeals can be filed only when Statute permits same and can be filed on the terms and conditions mentioned in Statute, Appeals are being heard in terms of the Act of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention that the deposits in the account are the sale proceeds of the land allegedly sold by him at Narbal. The respondent No.1 accordingly was not satisfied about the explanation tendered as it was based on no evidence and accordingly ordered that the deposits to the extent of Rs.14,67,137/- are assessed to tax as income from undisclosed sources, unexplained credits in the Bank account. The income from the salary was estimated at Rs.80,000/- and appellant was ordered to pay tax accordingly. The respondent No.1 also ordered for initiation of penalty proceedings u/s 271(1) (c) for providing inaccurate particulars of income.' 7. This order of the respondent No.1 was challenged by filing an appeal before the Commissioner of Income tax (Appeals) Jammu (head quartered at Amritsar). The appellant submitted photo copy of agreement to sell before Commissioner of Income tax (appeals) to substantiate his claim that the amount found in the SB account at J&K Bank branch Polo view was in fact the consideration amount received by him in lieu of the sale of the land at Narbal. The Commissioner of Income tax (Appeals) accepted the plea of the appellant so far as it related to the assessment y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived by the assessee or the Chief Commissioner or Commissioner]; (b) [* * *] (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which- (a) has not been determined by the Appellate Tribunal; or (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reproduced as under:- "15. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case, or not: the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See Santosh Hazari v. Purushottam Tiwari (deceased) by LO.Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel constitutes 14. Substantial question of law on which this appeal requires to be heard and decided. The perusal of the order of the Commissioner of Income tax (Appeals) as reproduced in this judgment demonstratively shows that the said authority has considered the agreement to sell but has declined to rely upon the same on the valid reasons; that the date and mode of receipt of total amount of Rs.28,00,000/- has not been mentioned in the said agreement to sell and has accordingly recorded a finding that the amount received allegedly for sale of land cannot be co-related with the dates of deposits in the bank account. The first appellate authority has while further dwelling upon the contention held that the document is not attested or certified by any authority so cannot be taken as genuine document. 15. The contention of ld. counsel for petitioner in view of the finding recorded in para (3.3) of the impugned order pales into in-significance and is rendered un-sustainable in law. The document having been considered but rejected for the reasons recorded would demonstratively show that the affect of the agreement to sell on the proceedings has been considered by the first ..... X X X X Extracts X X X X X X X X Extracts X X X X
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