IN THE HIGH COURT OF DELHI AT NEW DELHI 
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   ITA 141/2012  
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 CIT                    ..... Appellant 
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 Through Mr. N.P. Sahni, Sr. Standing 
 Counsel. 
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 versus 
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 SURENDRA BUILDTECHN PVT LTD.    ..... Respondent 
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 Through 
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 CORAM: 
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 HON'BLE MR. JUSTICE SANJIV KHANNA 
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 HON'BLE MR. JUSTICE R.V.EASWAR 
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 O R D E R 
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      05.03.2012 
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 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). 
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 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. 
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 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. 
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 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). 
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 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. 
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 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. 
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 Relist on 22nd March, 2012. 
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 SANJIV KHANNA, J. 
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 R.V.EASWAR, J. 
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 MARCH 05, 2012 
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 NA 
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 $ 16 
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