TMI Blog2009 (2) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... to mention here, that though, appeal is filed against the judgment/order of Income Tax Appellate Tribunal (Amritsar) but the said authority has not been impleaded as party respondent in this statutory appeal. The basic order of assessment has been passed by respondent No.1, whereby and where under, net taxable income of the appellant for the assessment year 2004-05 has been found to be Rs. 16,13,800/-, and the Income tax laveable on and recoverable 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 bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposits made in the SB account are the sale proceeds of land and some cash in the account is re-deposited in the account out of the cash withdrawals from the same account during the assessment year. The respondent No.1 in his assessment order has recorded a finding that the appellant gave same facts and reasons for the assessment year 2003-04. 6. The appellant failed to produce any documentary evidence in support of his above stated 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 (Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder passed in appeal by the Appellate Tribunal, if the High Court is satisfied that the case involves a substantial question of law. (2) [The Chief Commissioner or the Commissioner or an assessee aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such] appeal under this sub-section shall be- (a) filed within one hundred and twenty days from the date on which the order appealed against is [received 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... native and without prejudice to each other and has further stated that substantial questions of law are involved and same need to be adjudicated upon by this court. Appellant however has not clearly delineated in the memo of appeal as to which are the substantial question of law involved. What would constitute substantial question of law has been stated by Supreme Court in case "Kashmir Singh v. Harnam Singh reported in AIR 2008 SC 1749, the paras 15 to 17 are 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to 'decision based on no evidence'. It not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." 13. Ld. counsel for the appellant in support of his appeal has submitted that the agreement to sell which was produced before first Appellate Authority has not been considered by the said authority which according to wisdom of the ld. counsel 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 docu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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