PRAKASH KRISHNA, RAM SURAT RAM (MAURYA), J. - (1.) THE present appeal has been filed u/s 260 -A of the Income Tax Act, 1961, against the order dated 21.11.2008 passed by the Income Tax Appellate Tribunal, Agra Bench, Agra in Income Tax Appeal No. 97/Agr/2004 for the assessment year 2000 - 01.
(2.) IN the memo of appeal, the following substantial questions of law have been proposed - "(1) Whether in the facts and circumstances of the case, the Tribunal is justified in law in setting aside the concurrent findings of fact recorded by the A.O. and the CIT(A) without appreciating the material available on record in its correct perspective? (2) Whether in the facts and circumstances of the case, the Tribunal is justified in law in deleting the addition of Rs. 23,28,864/ - made by the A.O. and confirmed by the CIT(A) on account of profit on sale of diesel? (3) Whether in the facts and circumstances of the case, the Tribunal is justified in law in deleting the addition of Rs. 6,07,000/ - made by the A.O. on account of peak investment in purchase of drafts? (4) Whether in the facts and circumstances of the case, the Tribunal is justified in law in reversing the detailed decision rendered by the same bench by recalling the order on exactly the same facts, documents and circumstantial evidence in perverse and deserve to be quashed? (5) Whether in the facts and circumstances of the case, the Tribunal is justified in law in deleting the addition in spite of the fact that the same bench on the same issue had earlier vide their order dated 28.9.2007 confirmed these additions taking into account of all the logical facts and circumstances and after giving due diligence to the material facts of this case and the same was reversed by the Hon'ble Tribunal vide their successive order dated 21.11.2008? (6) Whether in the facts and circumstances of the case, the Tribunal is justified in law in coming to this conclusion ignoring the principle of human probabilities and in contravention to the ratio held in the case of Sumati Dayal vs. CIT 214 ITR 801 (SC) and Durga Prasad More vs. CIT 84 ITR 540 (SC)?" Heard Sri Shambhu Chopra, learned counsel for the Department and Sri. Vishwajeet, learned counsel for the respondent. The return of income filed by the assessee was not accepted and certain additions were made by the Assessing Officer. The matter was carried unsuccessfully before the CIT(A). The Tribunal by the order under appeal has allowed the appeal filed by the assessee on appreciation of the evidence on record. The ultimate finding recorded by the Tribunal is a follows: - "Under these circumstances, addition of Rs. 6,07,000/ - on account of the assessee being baseless and unconnected and the same deserves to be deleted from her hands. There is neither any allegation that Shri. Rakesh Kumar was assessee's benamidar nor there is such proof on the record. It is only sheer and mere guess work of ld. A.O., which can be one possibility. In case this issue were to be decided ex -parte, any and every could take the view that Shri. Rakesh was assessee's person and may have acted on her behalf. When she has explained her case with evidences, there can be no two opinions. When the assessee has not been connected with the evidences with these transactions, we fail to agree with ld. A.O. or with ld. CIT(A) for that matter. Whatever evidences she could produce in the given facts and circumstances of the case, have been produced by her. She has discharged her onus successfully. Now it was for the Revenue to bring some more proof to disprove her claim. Consequently, we, order to delete both these additions from the hands of the assessee."
(3.) THE said finding recorded by the Tribunal is essentially finding of fact. The Tribunal has concluded that the Department could not produce any material to show that the assessee was in any manner connected with the bank drafts recovered from one Rakesh Kumar. No substantial question of law is involved in the present appeal.;