1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 133 OF 2007 Bharat A. Doshi. ... .... ..... Appellant. Versus The Income Tax Officer, Wd-12(1)(4), Mumbai. ..... ..... Respondent. Mr. Vipul B. Joshi with Mr. Sameer G. Dalal for the Appellant. Mr. R. A. Vaishaimpayan for the Respondent. CORAM : BILAL NAZKI and A. A. KUMBHAKONI, JJ. DATED : 20TH AUGUST, 2008. P.C.: The following questions have been framed in the memo of appeal for consideration : (1) Whether, on the facts and circumstances of the case, and in law, the Tribunal was correct in upholding the action of the Respondent in apportioning 15% out of the total repair expenditure, as having incurred for non-business purpose? (2) Whether, on the facts and circumstances of the case, and in law, the Tribunal was correct in upholding the appropriation made by the Respondent relying on the survey material that was not 2 confronted to the Appellant? (3) Whether the order of the Tribunal is correct in law in view of the Supreme Court decision in the case of Kishanchand Chellaram v/s ITO [(1980) 125 ITR 713 (SC)] and accordingly is liable to be quashed? (4) Whether, on the facts and circumstances of the case, and in law, order of the Tribunal is perverse as it is based on totally irrelevant and erroneous considerations, while ignoring material and relevant considerations and, as such, is liable to be quashed? 2. We have gone through the questions. Heard learned Counsel for the appellant. 3. Question No.1 is not at all a question as envisaged under Section 261A of the Income Tax Act as it is not at all the substantial question of law. Hence the question No.1 is rejected. 4. Question No.2 is a question which could have been treated to be a question of law provided it was complained at any point of time till this appeal was filed that the survey report on which the Authority below had relied was not shown to the appellant or that he was not confronted with the material. Even in the memo of appeal filed before the first appellate authority, no such please was taken. Even during the hearing before the first 3 appellate authority no argument was made to the effect that this material collected during the survey was collected behind the back of the appellant. Even otherwise, while deciding the appeal, the first appellate authority has not gone into the said material as according to the said Authority this survey was not supported by any material with which the Tribunal has disagreed and the Tribunal has found that beyond survey there were testimonies of witnesses who were engaged for construction and repair of certain premises belonging to the appellant. In such a view of the matter, this question cannot be allowed to be raised for the first time in appeal. 5. The other two questions do not fall for consideration in view of our above findings. 6. In the circumstances, the appeal is dismissed. Sd/- (BILAL NAZKI, J.) Sd/- (A. A. KUMBHAKONI, J.)