1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 581 OF 2005 M/s. S. Rasiklal & Co. .......Appellant versus Asstt. Commissioner of Income tax Circle 16(3), Mumbai )........ Respondant. Mr. Nitesh Joshi i/b Mulla & Mulla for the Appellant CORAM: SWATANTER KUMAR, C.J., & A.P. DESHPANDE, J. DATED: 24TH SEPTEMBER, 2008. P.C.: 1. We have heard the learned counsel for the appellant. The challenge in the present appeal is to the order passed by the Tribunal on 2-1-2004 by which the appeal filed by the Revenue was partly allowed. The matter primarilly related to the claim of higher labour charges. The case in fact was on the basis of survey conducted under section 132A of the act on 22-12-1997 on the business of the assessee. On enquiries made, genuiness and reasonableness of labour charges paid by the assessee to the parties to whom the assessee has claimed to have paid the labour charges, do not have any documentary evidence. 2. The Tribunal by its order dated 2-1-2004 held as under: 2 “ We find that the A.O. allowed specific opportunity to cross examine the parties, who had earlier confirmed that they have not done any work for the assessee, but the assessee failed to cross examine the parties. The A.O. In the original assessment order u/s. 143(3) has recorded about these facts and also that the assessee has not filed any explanation in this connection till the date of passing of the original assessement order. We find that if the assessee was facing any difficulty in producing these parties for their cross examination, it would have made a request to the A.O. To summon these parties for cross examination etc. the assessee admittedly failed to do. In these facts, we hold that it cannot be said that the assessee has proved the genuineness of the labour charges claimed by it. Merely because the higher labour charges in the subsequent assessment years were allowed by the revenue is not decisive of the issue. We find that in the immediately preceding A.Y. 85-86 the labour charges comes to Rs. 154.79p. Per carat. Considering the totality of the facts and circumstances of the case, we hold that in view of the fact that the assessee could not prove the genuiness of the increase in the labour charges claimed by it and considering the instances of other traders in the line of trade with regard to labour charges, it shall be reasonable to sustain a disallowance of Rs. 5,00,000/- out of labour charges claimed by the assessee and accordingly, the ground of appeal of the revenue is partly allowed.” 3. The above findings have been questioned by the appellant as being adverse finding and are not reasonable on the ground of requisite question of law, which is sought to be raised in the present appeal for consideration of this court. We are unable to find any merit in the contention that the findings 3 recorded by the Tribunal are totally contrary because these are the findings which no reasonable human personal can arrive at. We noticed that the assessee had written a letter on 29th March, during pendency of the proceeding before the assessement officer stating that labour charges have been paid and that those agents had given negative statement and wishes to place documents on record. This explanation was not accepted by the assessment officer while passing the order of assessment which noticed that the explanation now sought to be offered by the representative of assessee, cannot concern with this very party who appeared and made statement denying that they had done any work of labour and made any payment. Those parties also stated that they had not proved any documents and subsequent attempt on the part of the assessee to produce documents on record, was rejected. We are unable to find any fault giving rise to any question of law in this appeal. We further noticed that while referring to the work done by other parties, it was also noticed by the tribunal that notices were returned as addresses given by the assessee were not correct. The learned counsel for the appellant relied upon a judgment of the Supreme Court in case of Kishinchand Chellaram Vs. Commissioner of Income tax reported in 1980 (125) ITR page 713 to contend that this raises a question of law. The facts of that case are entirely different. It was not in dispute that in that case the letter written by the manager of the bank which was relied 4 upon by the department was neither shown nor kept thereon by the assessee in that case wherein the assessee participated in the proceeding and was fully aware of the statement made by the alleged person whom he placed the labour work and which relied on transaction of providing work or even receiving payment. Thus this judgment is of no help. 3. No question of law involved. Appeal dismissed. CHIEF JUSTICE A.P. DESHPANDE, J.