1 itxa2350-09 sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.2350 OF 2009 The Commissioner of Income Tax-VI, Mumbai ..Appellant. V/s. M/s. Diamond Dye-Chem Ltd. ..Respondent. Mr. Suresh Kumar for the appellant. Ms. Aasifa Khan for the respondent. CORAM : J.P. DEVADHAR AND A.R. JOSHI, JJ. DATED : 29TH NOVEMBER, 2011 P.C. :- 1. Whether the ITAT was justified in holding that the addition made by the assessing officer and enhanced by the CIT(A) on account of unutilised Modvat credit was not sustainable in law, is the question raised in this appeal. 2. The ITAT in para 7 of its order has recorded a finding that the assessee has given effect to the provisions of Section 145A of the Income Tax Act, 1961 in valuing purchase and sale of goods and inventory for the purpose of determining the income chargeable under 2 itxa2350-09 the head “profits and gains of business or profession” and the same is evident from annexure-III to the tax audit report. The ITAT further held that the revenue has simply added the amount of difference without pointing out whether balance in Modvat credit account pertains to purchase and sale of goods and inventory for the purpose of determining the income chargeable under the head “profits and gains of business or profession”. In our opinion, the decision of the Tribunal is based on finding of fact. No question of law arises out of the said order. Hence the appeal is dismissed with no order as to costs. (A.R. JOSHI, J.) (J.P. DEVADHAR, J.)