IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPLICATION NO.108 OF 1999 INCOME TAX APPLICATION NO.108 OF 1999 INCOME TAX APPLICATION NO.108 OF 1999 The Commissioner of Income tax ..Applicant. V/s. Liberty Investments P. Ltd. ..Respondent. Mr.Suresh Kumar for applicant. Mr.F.V.Irani i/b. M/s. Eventa A.Gonsalaves for respondent. CORAM : V.C.DAGA AND CORAM : V.C.DAGA AND CORAM : V.C.DAGA AND J.P.DEVADHAR, JJ. J.P.DEVADHAR, JJ. J.P.DEVADHAR, JJ. DATED : 8TH APRIL, 2009. DATED : 8TH APRIL, 2009. DATED : 8TH APRIL, 2009. P.C. :- P.C. :- P.C. :- 1. Perused application. Heard learned counsel for the applicant. This application is filed under section 256(2) of the Income Tax Act, 1961. The application has already been admitted on 23rd June, 1999 on the following substantial question of law:- " On the facts and in the circumstances of the case and in law, the learned I.T.A.T. has failed to appreciate that the payments of Rs.45 lakhs made to its sister concern is in the nature of Sham Transaction and erred in directing to allow as deduction from Capital Gain ? " 2. Having heard parties and having perused the order of the assessing officer as well as that of CIT - = : 2 : = - (A) together with the order of the Tribunal, in the last para of the Tribunal’s order, it is recorded as under:- " The question proposed by the revenue is to the effect that the Tribunal should not have allowed the deduction of Rs.45,00,000/- as it was in the nature of a sham transaction. " 3. In view of the above finding, it is clear that the decision of the Tribunal is based on the finding of fact as such no referable question of law arises from the order of the Tribunal. Even otherwise, the question in that regard was never raised before the assessing officer. In the circumstances, substantial question of law does not arise. 4. Application is thus dismissed with no order as to costs. (V.C.DAGA, J.) (V.C.DAGA, J.) (V.C.DAGA, J.) (J.P.DEVADHAR, J.) (J.P.DEVADHAR, J.) (J.P.DEVADHAR, J.)