- (1.) We heard counsel for the appellant and perused the order passed by the Tribunal. On a careful consideration of the findings recorded by the Tribunal, we find that the findings are concluded on facts.
(2.) The counsel for the assessee -appellant sought to place reliance upon the decision of Delhi High Court in the case of Vinay Kumar Modi v/s. CIT : [2005] 272 ITR 91 : 142 Taxman 462, wherein the Delhi High Court observed thus: We have gone through the record, that is to say, the orders may by the Assessing Officer, Commissioner of Income -tax (Appeals) and the Income -tax Appellate Tribunal. The Assessing Officer asked the assessee to explain the details of expenditure incurred during the marriage of the son of the assessee. The assessee submitted details at page 26 of the paper book divided into several heads from (a) to (j) and pointed out that a sum of Rs. 3,14,440 was spent. However, the Assessing Officer, without any material made the assessment order disbelieving the figures and has added on estimation a sum of Rs. 7,00,000. The assessee pointed out that as per the bill of the caterer, 600 persons have taken snacks at the reception at Modi Nagar. When the caterer's bill itself had been produced to show that 600 guest were served, it was highly improper to say that more than 5,000 people had participated in the function. Further, the officer making assessment has observed that 'there was no mention of dinner in the invitation card but it can be concluded that the dinner must have been served during the function.' There is no evidence about the dinner. The function was in the evening from 6.30 p.m. to 7.30 p.m. No inquiry is made by the Assessing Officer in this behalf. Though the Assessing Officer observed that 'ghazal programme' was held, no payment for sound system was made nor any payment for dinner was made though it 'must have been' served when the ghazal programme went on 'till midnight' and estimated the expenditure to the tune of Rs. 2,50,000. He did not believe that the amount shown towards expenditure on food, rent, furniture and sound system to the tune of Rs. 31,590, was just and proper. The Assessing Officer again observed as under: - Expenses are also incurred on the guests who must have come from allover the country and stayed during the marriage function. Rs. 2,50,000 as sundry expenses have been shown without any evidence whatsoever in this regard. When the assessee produced before the Assessing Officer, the details of the amount spent, then in that case, without any material, it was not proper to doubt the same. There must be some evidence to come to a conclusion. There is nothing to indicate that the Assessing Officer made enquiries from the printer who printed the invitation from the printer who printed the invitation cards or the persons who made arrangements at New Delhi or at Modi Nagar for tents, furniture, etc. There is nothing to show that the Assessing Officer recorded the statement of the persons who served the dinner to 600 persons. There is nothing to show that there was any enquiry made in this behalf. For the ghazal performance amount is indicated yet, on estimation the Assessing Officer has proceeded to assess the assessee. There is specific entry with regard to the charges for stay of the artists, who performed the programme sound system and ghazal performance yet, the Assessing Officer without any further enquiry his whims and fancies disbelieved the assessee, we find that the Assessing Officer has assumed that at least 5,000 persons must have attended the function. We find at several places the Assessing Officer has used the expression 'must have been' or 'must be this clearly displays that the assessment was based on nothing but surmise and conjecture. There is long distance to be traveled between 'may be' and 'must be'. Here, without moving an inch the finding is recorded. One could have understood if an enquiry had been made an thereafter the conclusion was recorded.
(3.) It is pertinent to notice that in case of Vinay Kumar Modi (supra) Delhi High Court observed that there was no indication that Assessing Officer made enquiries from the printer who printed the invitation cards or the person who made arrangement for tents, furniture, etc. and objection was found to have been made on surmises and conjectures. That does not seem to be the case here as on diverse aspects the queries were made by the Assessing Officer to the assessee and after consideration of the reply, the assessment order was framed. The finding recorded by the Tribunal are concluded on facts. No substantial question of law arises. Special appeal is dismissed in limine.;