Bharat A. Doshi v. The Income Tax Officer, Wd-12(1)(4), Mumbai

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 448 OF 2006 Bharat A. Doshi.............Appellant. VersusThe Income Tax Officer, Wd-12(1)(4), Mumbai. ..........Respondent. Mr. Vipul B. Joshi with Mr. Sameer G. Dalal for the Appellant. Mr. R. A. Vaishaimpayan for the Respondent. CORAM :BILAL NAZKIandA. A. KUMBHAKONI, JJ.DATED :20TH AUGUST, 2008. P.C.: The following questions have been framed in the memo of appeal for consideration : (1) Whether, on the facts and circumstances of the case, and in law,the Tribunal was correct in upholding the action of the Respondentthe Tribunal was correct in upholding the action of the Respondent in apportioning 15% out of the total repair expenditure, as havingincurred for non-business purpose? (2) Whether, on the facts and circumstances of the case, and in law,the Tribunal was correct in upholding the appropriation made bythe Respondent relying on the survey material that was notthe Tribunal was correct in upholding the appropriation made bythe Respondent relying on the survey material that was not confronted to the Appellant? (3) Whether the order of the Tribunal is correct in law in view of theSupreme Court decision in the case of Kishanchand Chellaram v/sITO [(1980) 125 ITR 713 (SC)] and accordingly is liable to bequashed?Supreme Court decision in the case of Kishanchand Chellaram v/sITO [(1980) 125 ITR 713 (SC)] and accordingly is liable to bequashed? (4) Whether, on the facts and circumstances of the case, and in law,order of the Tribunal is perverse as it is based on totally irrelevantand erroneous considerations, while ignoring material and relevantconsiderations and, as such, is liable to be quashed?order of the Tribunal is perverse as it is based on totally irrelevantand erroneous considerations, while ignoring material and relevantconsiderations and, as such, is liable to be quashed? 2.We have gone through the questions. Heard learned Counsel for theappellant. appellant. 3.Question No.1 is not at all a question as envisaged under Section 261Aof the Income Tax Act as it is not at all the substantial question of law. Hencethe question No.1 is rejected. 4.Question No.2 is a question which could have been treated to be aquestion of law provided it was complained at any point of time till thisappeal was filed that the survey report on which the Authority below hadrelied was not shown to the appellant or that he was not confronted with thematerial. Even in the memo of appeal filed before the first appellateauthority, no such please was taken. Even during the hearing before the first appellate authority no argument was made to the effect that this materialcollected during the survey was collected behind the back of the appellant.Even otherwise, while deciding the appeal, the first appellate authority hasnot gone into the said material as according to the said Authority this surveywas not supported by any material with which the Tribunal has disagreedand the Tribunal has found that beyond survey there were testimonies ofwitnesses who were engaged for construction and repair of certain premisesbelonging to the appellant. In such a view of the matter, this question cannotbe allowed to be raised for the first time in appeal. 5.The other two questions do not fall for consideration in view of ourabove findings.above findings. 6.In the circumstances, the appeal is dismissed. Sd/- (BILAL NAZKI, J.) Sd/- (A. A. KUMBHAKONI, J.)