CIT vs. SURENDRA BUILDTECHN PVT LTD

IN THE HIGH COURT OF DELHI AT NEW DELHI . . . ITA 141/2012 . . . CIT ..... Appellant . Through Mr. N.P. Sahni, Sr. Standing Counsel. . . . versus . . . SURENDRA BUILDTECHN PVT LTD. ..... Respondent . Through . . . CORAM: . HON'BLE MR. JUSTICE SANJIV KHANNA . HON'BLE MR. JUSTICE R.V.EASWAR . . . O R D E R . 05.03.2012 . . . Concurrent findings recorded by the CIT (Appeals) and the Income Tax Appellate Tribunal (ITAT) are under challenge in this appeal under Section 260A of the Income Tax Act, 1961 (Act, for short). . During the course of hearing, learned sr. standing counsel for the Revenue wants to file a paper book before us. It is submitted by him that the factual findings recorded by the ITAT on the first issue with regard to the disallowance under Section 40 (a)(ia) are incorrect. He submits that the CIT (Appeals) has recorded a factually incorrect finding that the assessee had given discount to the buyers and, in fact, the amount represents payment made to the sub-brokers. . During the course of hearing, it was put to the learned sr. standing counsel whether the said contention was raised before the ITAT and whether the questionnaire issued by the Assessing Officer and the reply submitted by the assessee were filed in a paper book before the ITAT. . Learned Senior Standing Counsel states that even if the documents/papers were not filed by the Revenue before the ITAT, these documents/papers can be taken on record by this Court in an appeal under Section 260A of the Act as the original assessment records were before the CIT (Appeals). . The last submission cannot be accepted as a universally correct general proposition. If a CIT (Appeals) records a factually incorrect finding, then the Revenue/assessee, when they prefer an appeal before the ITAT, must place necessary documents/papers on record to show and establish that the factual findings were incorrectly recorded by the first appellate authority. ITAT is a final fact finding authority. In case an appeal is preferred by the Revenue, then the onus is on them to show and establish that factually wrong findings have been recorded by the first appellate authority and the findings recorded by the Assessing Officer are correct. Nothing prevents the Revenue from filing the papers/documents before the ITAT. In case they fail to discharge the said onus and commit a lapse, their failure and inability cannot give rise to a question of law under Section 260A of the Act. Perversity in factual findings before us has to be examined on the basis of the findings recorded by the ITAT and the material/paper book before the ITAT. . The appellant will file an affidavit stating that the paper book, which they now want to place on record, was filed before the ITAT. The said affidavit will be filed within a period of two weeks. . Relist on 22nd March, 2012. . . . . . . . SANJIV KHANNA, J. . . . . . . . R.V.EASWAR, J. . MARCH 05, 2012 . NA . . . $ 16 .