bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.947 OF 2009 Commissioner of Income Tax ..Appellant Vs. M/s.Chhabaria Marketing Ltd. ..Respondent Mr.Suresh Kumar for appellant. Mr.Pardiwala, Senior Advocate i/b. Roys’ Law Firm for respondent. CORAM :- V.C.DAGA & J.P.DEVADHAR,JJ. DATE : 28TH JULY, 2009 P.C. 1. Heard. Following substantial questions of law sought to be raised in the appeal. a) Whether on the facts and in the circumstances of the case, the ITAT is right in deleting the addition of Rs.4,76,852/- on account of service charges holding that the expenses were incurred in the course of business ? b) Whether on the facts and in the circumstances of the case, the ITAT is right in directing the Assessing Officer to allow claim of the assessee of sales promotion expenses of Rs.447.81 lacs in respect of M/s.Riverside Marketing Pvt. Ltd. without considering the fact that the said company has not rendered any services to the assessee ? c) Whether on the facts and in the circumstances of the case, the ITAT is right in deleting the sales promotion expenses of Rs.34.42 lacs in respect of M/s.Hill View Marketing P. Ltd. holding that the said company undertakes sales promotion activities though it has no its own infrastructure ? d) Whether on the facts and in the circumstances of the case, the ITAT is right in deleting the addition of Rs.9,00,000/- in respect of sales promotion expenses of M/s.Bio Foods P.Ltd. without considering the facts that the said company has not rendered any services to the assessee ? e) Whether on the facts and in the circumstances of the case, the ITAT is right in deleting the addition of Rs.33,22,046/- in respect of prior period expenses ignoring the fact that the expenses were not pertaining to the year under consideration and same were related to the earlier period ? f) Whether on the facts and in the circumstances of the case, the ITAT is right in quashing the assessment framed by the Assessing Officer on the ground that the two prerequisite conditions to be satisfied by the Assessing Officer before giving direction for specific audit and the Assessing Officer has not satisfied the same ? g) Whether on the facts and in the circumstances of the case, the ITAT is right in holding that the extended time as per provisions of section 153(1)(a) explanation 1(iii) is not available to the Assessing Officer to pass the assessment order without considering the fact that the Assessing Officer has clearly brought on records the fats for issue of direction u/s.142(2A) for Special Audit ? 2. According to learned Counsel appearing for the respondent, the first five questions are nothing but appreciation of evidence. Learned Counsel for the Revenue could not counter this submission, though he tried to contend that it is not appreciation of evidence. We were taken through the order of the Tribunal. We concur with the submissions made by learned Counsel for the respondent that the first five questions revolve around appreciation of evidence and are based on clear finding of fact recorded by the Tribunal. 3. So far as last two questions are concerned, the Tribunal has recorded a categorical finding that the books of accounts of assessee were not even examined by the Assessing Officer so as to satisfy himself about nature and complexity thereof nor any notice was given to the assessee before issuing direction for special audit u/s. 142(2A). In this view of the matter, the view taken by the Tribunal cannot be faulted. The appeal is, therefore, dismissed in limine with no order as to costs. (J.P.DEVADHAR,J.) (V.C.DAGA,J.)