Manmohan, J.@mdashThe present two appeals have been filed u/s 260A of the income tax Act, 1961 (for brevity ""the Act"") challenging the
common judgment and order dated August 6, 2009 passed by the income tax Appellate Tribunal (in short ""the Tribunal"") in I. T. As Nos.
1480/Del/2008 and 799(Delhi)2009 for the assessment year 2005-06. It is pertinent to mention that while the first appeal is a quantum appeal, the
second is a penalty appeal. However, as both the appeals arise out of a single judgment, they are being disposed of by a common order.
2. Ms. Suruchii Aggarwal, learned counsel for the Revenue pointed out that the respondent-assessee had neither produced the relevant documents
before the Assessing Officer (in short, ""AO"") nor had made any request under rule 46A of the Rules for admission of the said documents as
additional evidence. Consequently, Ms. Aggarwal submitted that the Tribunal had erred in law in holding that the respondent-assessee had
produced all the relevant documents before the Assessing Officer especially when the Assessing Officer in his assessment order had stated that
though confirmation from the director had been filed but no copy of bank account and I. T. particulars had been furnished by the respondent-
assessee before the Assessing Officer.
3. However, upon a perusal of the impugned order, we find that the final fact finding authority, namely, the Tribunal has found that the
Commissioner of income tax (Appeals) (in short, ""CIT(A)"") had wrongly treated the papers filed by the respondent-assessee as new evidence
when from the written submissions filed by the respondent-assessee before the Commissioner of income tax (Appeals), it was apparent that the
said documents had been placed along with the paper book. Since this fact was not disputed by the Departmental representative, the Tribunal
concluded that the said relevant papers along with a copy of confirmation and returns had been filed before the Assessing Officer.
4. During the course of hearing, we offered to Ms. Suruchii Aggarwal, learned counsel for the Revenue that if she would like to withdraw the
present appeals to file an application u/s 254(2) of the Act. However, she stated that she had no instructions to make such a statement. In any
event, in our opinion, the said finding can neither be disputed nor said to be perverse especially when the appeal paper book filed by the
respondent-assessee before the Commissioner of income tax (Appeals) has not been filed along with the appeal.
5. Moreover, upon a perusal of the appeal paper book, we find that as the respondent-assessee director''s identity was established and the
transactions were not denied, the initial burden cast on the respondent-assessee stood discharged. Accordingly, the present quantum appeal, being
bereft of merit, is dismissed. Since we are not inclined to interfere in the quantum appeal, the second appeal pertaining to penalty is also dismissed.