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TMI Blog2011 (7) TMI 959X X X X Extracts X X X X X X X X Extracts X X X X ..... htly accepted, or not - it does not involve any substantial question of law. - Decided in favor of the assessee - IT Appeal No. 138 of 2011 - - - Dated:- 25-7-2011 - A.M. Sapre, Narendra Kumar Jain, JJ. K.K. Bissa for the Appellant JUDGEMENT A.M. Sapre, J:- 1. This is an appeal filed by the CIT under s. 260A of the IT Act against an order dt. 26th March, 2010 passed by Income-tax Appellate Tribunal, Jodhpur Bench, Jodhpur (for short called "Tribunal") in ITA No. 661/Ju/2008 for the period asst. yr. 2006-07 [reported as Asstt. CIT vs. Raj Dhariwal (2011) 63 DTR (Jd)(Trib) 113 Ed.] 2. By impugned order, the Tribunal allowed the assessee's appeal and partly allowed the appeal of the Revenue and in consequence re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in question and answered it against the appellant (Revenue) and in assessee's favour:- "On merits, however, we find that the seized documents placed at Annex. A-1/40, 50 and 35A reveal three different figures, admittedly not in the handwriting of the assessee, but statedly to be in the hands of the representative of the promoters of the scheme show calculations for the payment of schedule and price of structure etc. In Annex. A-1/140, total price is quoted @ Rs. 6500 per sq. yard In Annex. A1/50 containing payment schedule, price of plot has been shown at Rs. 3150 per sq. yard and in Annex. A-1/35A, the rate of plot is shown at R. 4500 per sq. yard. The AO has, however, acted on the basis of price @ Rs. 6,500 per sq. yd. The payment s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he market to show that the assessee has made payment more than that is found recorded in his accounts or the value of the property was more than that stated in the sale deed. The statement made under s. 132(4) making surrender which gives rebuttable presumption, could not have been taken as basis for making addition as unexplained investment in plot by the assessee, particularly when no evidence of payment, in fact has been found even at the time of search. Under these circumstance, the statement alone cannot be made a sole basis for making addition as unaccounted investment as held by Hon'ble Andhra Pradesh High Court in the case of CIT vs. Shri Ramdas Motor Transport (2000) 163 CTR (AP) 403 : (1999) 238 ITR 177 (AP). It however, remains, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t involve any substantial issue of law as such. In other words, this Court in its appellate jurisdiction under s. 260A ibid, would not again de novo hold yet another factual inquiry with a view to find out as to whether explanation offered by assessee and which found acceptance to the Tribunal is good or bad, or whether it was rightly accepted, or not. It is only when the factual finding recorded had been entirely de hors the subject or that it had been based on no reasoning, or based on absurd reasoning to the extent that no prudent man of average judicial capacity could ever reach to such conclusion, or that it had been found against any provision of law, then a case for formulation of substantial question of law on such a finding can be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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