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TMI Blog2012 (7) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissing Revenue's appeal.? and secondly and more importantly that being the sin qua none for hearing the appeal, whether the appeal involves any substantial question of law within the meaning of Section 260-A of the Act. 4. Few facts necessary for the disposal of the appeal need mention infra. 5. A search and seizure operation was carried out under Section 132 of the Act in the residential premises of the assessee (respondent herein) - an individual on 20.12.2001. Simultaneously, similar search operations were also carried out in the premises of his other family members. So far as the assesee is concerned, he is a professor in one college. He also derives income from one business concern by name Chattisgarh Auto Care Raipur. 6. In search operation, cash, jewellery, gold, silver and other valuables were seized. This led to initiation of assessment proceedings for the block period (1.4.95 to 31.3.2001) under Section 158BC/143(3) ibid. The A.O. made the assessment making certain additions .It was then challenged in appeal before the CIT (appeals) by the assessee who got partial relief in the appeal. The assessee then filed further appeal before the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. Learned Counsel for the respondent (assessee) at the threshold urged by raising one preliminary objection that none of the aforementioned three questions framed by the Court at the time of admission can be called as "substantial questions of law" within the meaning of Section 260-A of the Act. Learned Counsel contends that by virtue of Sub Section (4) of Section 260-A ibid, the respondent has a right to raise such objection at the time of final hearing of the appeal and hence even if this court had admitted the appeal on aforementioned three questions of law, yet, admission of appeal on such questions is not binding on the respondent because it was done behind their back. Learned Counsel contends that it is due to this legal right given to the respondent under Section 260-A (4), this court has to re- examine this issue at the instance of the respondent and record a finding as to whether three questions though framed satisfy the requirements of substantial question of law for final hearing of appeal on such questions or not before proceeding to decide the appeal on merits. Learned Counsel contends that all the three questions framed are essentially the questions of facts and hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of law or not? If however, on examination of such issue, the Court comes to a conclusion that question framed does constitute a substantial question of law within the meaning of Section 260-A then the court has to overrule the objection raised by the respondent by assigning reasons and then proceed to answer the said question as substantial question of law. But if the court comes to a conclusion that question framed is not a substantial question of law as urged by the respondent then the appeal has to be dismissed as involving no substantial question of law unless the appellant is able to show on the strength of proviso to sub section 4 that appeal involve some other question though not framed at the time of admission and persuade the court to frame such question. 14. So the sin qua none for admitting and deciding the appeal on merits under Section 260-A of the Act is involving and arising of substantial question of law in the appeal. It is only then the appeal can be admitted for final hearing on such question else not. 15. In our opinion, learned counsel for the appellant was not able to substantiate as to how question no 1 can be said to satisfy the rigour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O. added a sum of Rs. 3, 64,830 treating this sum to be an income from undisclosed source. The case of the assessee on this issue was that this amount was falling in the assessment year 2001-2002 and for that assessment year, he had already paid advance tax and TDS much earlier to commission of raid and secondly had also filed the return under section 139 of the Act for that year disclosing this income. He contended that raid in question was carried out on 20.12.2001 whereas he filed the return though subsequent to date of raid but he could do so because revenue was aware of payment of advance tax and TDS made by him prior to commission of raid. 22. The CIT (appeal) as also Tribunal accepted the stand taken by the assessee and by placing reliance on the decision of Bombay High Court reported in 249ITR 501, held that addition of Rs 3, 64,830 in block period assessment as an income from undisclosed source made by A.O. was bad in law and hence had to be deleted from the total income of the assessee under Section 158BC. It is this finding which is now under challenge by the Revenue in this appeal by framing question no 2. 23. In our considered view, we are inclined to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corded by the Tribunal. Since, no substantial question of law arises, the appeal is dismissed." 27. Now so far as facts of this case are concerned, as stated supra, they are similar to the facts involved in Bombay case. In this case also, the assessee filed the return under section 139 (1) and much before filing of the return and commission of the raid had already paid advance tax and TDS. In the light of these facts, both CIT (appeals) and Tribunal rightly deleted the addition of Rs. 3, 64, 830 and declined to treat such income as an income from undisclosed sources for the purpose of taxing it under the special provisions of block period in question .That apart, the A.O. also failed to sustain the addition by placing reliance on any evidence seized in raid operation. 28. In the light of these admitted findings, we are of the view that this question also therefore does not involve any substantial question of law within the meaning of Section 260-A as was held by the Bombay High Court in the case of Shamlal (supra) and we respectfully follow the law laid down by the Bombay High Court for holding this issue against the appellant (Revenue). 29. In the light of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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