:1: [ASN] [ASN] [ASN] IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.9 OF 2009 Commissioner of Income tax-12. ..Appellant. Vs. Panchavati Developers. ..Respondent. Mr. P.S.Sahadevan with Mr. A.D. Nagarjun for the Appellant. Mr.R. Murlidhar with Mr. B.Damodar i/by Kanga & Co. for the Respondent. CORAM : F.I.REBELLO & R.S.MOHITE, JJ. DATE : 2ND MARCH, 2009. PC : 1. Revenue is in appeal on the following questions. a) Whether on the facts and in the circumstances of the case and in law the ITAT was justified in not sustaining the disallowances under Section 40A(2)(a) of the I.T.Act, 1961 of Rs.55,54,976/- upheld by the CIT(A) on account of excessive payment made by the respondent in lieu of additional FSI? b) Whether on the facts and in the circumstances of the case and in law the ITAT was justified in holding that the parameters laid down in Section 40A(2)(a) are not satisfied in the present case without controverting the instances of the market value of the additional FSI that was relied upon by the CIT(A) while sustaining the aforesaid disallowance of Rs.55,54, 976/- under :2: section 40A(2)(a) of the Income Tax Act, 1961? c) Whether on the facts and in the circumstances of the case and in law, the finding of the ITAT that the parameters of Section 40A(2)(a) of the I.T.Act, 1961 are met is perverse and bad in law? 2. The issue arises in respect of the purchase of right of way and purchase of additional FSI for two projects from M/s. Upvan Developers by the assessee-respondent. Incidentally, Upvan Developer was also the partner of the assessee. There is a finding of fact recorded that the purchase price was comparable to the price prevailing as also to the rate prescribed by the registration department for the stamp duty purpose. Once there is finding of fact that the price paid is comparable to other sale instances as also value of FSI, merely because the firm M/s. Upvan Developer has not offered the amount cannot result in holding that the asssessee herein has not paid the amount to M/s. Upvan Developer. Atleast there is no finding of fact recorded that the amount has not been paid by the assessee to M/s. Upvan Developer. Once that be the case, in our opinion, the question of law as framed would not arise. Consequently, appeal dismissed. (R.S. MOHITE, J.) (F.I. REBELLO, J.)