Ita/296/2013 Of The Commissioner Of Income Tax v. Sri.promy Kuriakose

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC &THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU THURSDAY, THE 14TH DAY OF JULY 2016/23RD ASHADHA, 1938 ITA.No. 296 of 2013 () -----------------------AGAINST THE ORDER/JUDGMENT IN ITA 346/2011 of I.T.A.TRIBUNAL,COCHIN BENCHDATED APPELLANT(S)/APPELLANT: ----------------------- THE COMMISSIONER OF INCOME TAX(CENTRAL), COCHIN. BY ADVS.SRI.P.RABINDRANATHA MENON (SR) SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT(S)/RESPONDENT: ------------------------- SHRI.PROMY KURIAKOSE PADAYATTIL HOUSE, KIDANGOOR, ANGAMALY. R,R BY ADV. SRI.ANIL D. NAIR R,R BY ADV. SRI.R.SREEJITH R,R BY ADV. SULEKHA BEEVI C.S R,R BY ADV. ROSIE ATHULYA JOSEPH THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 14-07-2016,ALONG WITH ITA. 301/2013,AND CONNECTED CASES, THE COURT ON THE SAMEDAY DELIVERED THE FOLLOWING: APPENDIX IN ITA.296/13 APPELLANTS' EXHIBITS: ANNEXURE A: TRUE COPY OF ASSESSMENT ORDER U/S.153A R.W.S.153C AND 143(3)DATED 31.12.2008.DATED 31.12.2008. ANNEXURE B: TRUE COPY OF ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS) DATED 10.2.2011.(APPEALS) DATED 10.2.2011. ANNEXURE C: CERTIFIED COPY OF THE TRIBUAL'S ORDER IN ITA.346/COCH/2011DATED 29.5.2013.DATED 29.5.2013. /TRUE COPY/ PS TO JUDGE ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ.-----------------------------------I.T.A.Nos.296, 301, 309, 314 & 315 of 2013----------------------------------- Dated this the 14[th] day of July, 2016 JUDGMENT Antony Dominic, J. 1. Among these appeals which are filed by the Revenue,ITA. Nos.309/13, 315/13 and 301/13 are concerning theassessment years 2001-02, 2003-04 and 2004-05respectively and ITA.Nos.296/13 and 314/13 areconcerning the assessment year 2005-06. In theseappeals, the Revenue is challenging the common orderpassed by the Tribunal, by which, out of the sixappeals filed by the assessee concerning theassessment years 2001-02 and 2003-04 to 2007-08,appeals for assessment years 2001-02, 2003-04, 2004-05 and 2005-06 were allowed, appeals for assessmentyears 2006-07 and 2007-08 were partly allowed and thetwo appeals filed by the Revenue concerning theassessment years 2004-05 and 2005-06 were dismissed. 2.Briefly stated, facts of the case are that there wasa search under section 132 of the Income Tax Act on13.2.2007 in the case of one P.A.Kuriakose andPaulson P.Varkey group, which is stated to be mainlya search under section 132 of the Income Tax Act on13.2.2007 in the case of one P.A.Kuriakose andPaulson P.Varkey group, which is stated to be mainly ITA.296/13 & con. cases engaged in hotel and jewellery business. In thecourse of search in M/s.Matha Enterprises, a concernof the aforesaid group, large scale suppression ofsale was found. It was also found thatM/s.P.A.Kuriakose Jewellers and M/s.Matha Enterpriseshad introduced loans and credits in the name of thefamily members. The respondent assessee is one ofthe family members of P.A.Kuriakose and PaulsonP.Varkey. 3.Based on the aforesaid search, proceedings undersection 153C of the Act were initiated against theassessee and assessments under section 153A read withsection 153C and 143(2) were completed for theassessment years 2001-02 to 2007-08. The assesseefiled appeals which were partly allowed by the firstappellate authority. Aggrieved by the orders passedby the first appellate authority, the assessee filedI.T.A.Nos.423/10, 424/10, 370/11, 371/11, 425/11 and426/11 concerning the assessment years 2001-02 to2007-08. The Revenue also filed ITA.Nos.345/11 and346/11 challenging the first appellate authority'sorder for the assessment years 2004-05 and 2005-06 ITA.296/13 & con. cases 3.Based on the aforesaid search, proceedings undersection 153C of the Act were initiated against theassessee and assessments under section 153A read withsection 153C and 143(2) were completed for theassessment years 2001-02 to 2007-08. The assesseefiled appeals which were partly allowed by the firstappellate authority. Aggrieved by the orders passedby the first appellate authority, the assessee filedI.T.A.Nos.423/10, 424/10, 370/11, 371/11, 425/11 and426/11 concerning the assessment years 2001-02 to2007-08. The Revenue also filed ITA.Nos.345/11 and346/11 challenging the first appellate authority'sorder for the assessment years 2004-05 and 2005-06 ITA.296/13 & con. cases respectively. By the common order passed, theTribunal allowed the appeals filed by the assesseefor the assessment years 2001-02, 2003-04, 2004-05and 2005-06 and the appeals for the assessment years2006-07 and 2007-08 were partly allowed. The appealsfiled by the Revenue were dismissed. It is in thisbackground, the Revenue has filed these appeals andthe questions of law framed in ITA.314/13, which arecommon in nature, are the following: “1. Whether the ITAT is right in law in holdingthat no assessment can be made u/s.153C in theabsence of search material for that particularyear? 2. Whether the ITAT is right in holding thatnotice u/s.143(2) cannot be issued after theexpiry of 12 months from the date of originalreturns filed, without noticing the fact that thereturns filed in response to notice u/s.153C are tobe treated as a return required to be furnishedu/s.139 of the IT Act? 3. Whether, on the facts and in the circumstancesof the case and considering the materials seized isnot the assessment order valid and in accordancewith law?” ITA.296/13 & con. cases 4.We heard the senior counsel for the Revenue and thelearned counsel appearing for the assessee.learned counsel appearing for the assessee. 5. The first issue on which considerable arguments wereaddressed by both sides is regarding the finding ofthe Tribunal in the impugned order on the scope ofassessment under section 153C of the Act. In so faras this issue is concerned, the Tribunal itself hasposed a question whether there can be an addition inthe proceedings under section 153C in the absence ofsearch material. On this issue, the Tribunalreferred to various precedents and concluded that tosustain an addition in an assessment under section153C, materials should be recovered in the search.Learned senior counsel for the Revenue impugned thisfinding of the Tribunal mainly making reference tothe judgment of this Court in ITA.169/15 andconnected cases and according to him, even in theabsence of recovery of incriminating materials, anassessment under section 153C read with section 153Ais liable to be sustained. ITA.296/13 & con. cases 6.This contention, which was refuted by the learnedcounsel for the assessee, can be answered in thelight of the statutory provisions itself. Section153C (1) alone, being relevant, read as follows: “153C. Assessment of income of any other person- (1) Notwithstanding anything contained in section139, section 147, section 148, section 149, section151 and section 153, where the Assessing Officeris satisfied that any money, bullion, jewellery orother valuable article or thing or books of accountor documents seized or requisitioned belongs orbelong to a person other than the person referredto in section 153A, then the books of account ordocuments or assets seized or requisitioned shallbe handed over to the Assessing Officer havingjurisdiction over such other person and thatAssessing Officer shall proceed against each suchother person and issue such other person noticeand assess or reassess income such other personin accordance with the provisions of section 153A: “153C. Assessment of income of any other person- (1) Notwithstanding anything contained in section139, section 147, section 148, section 149, section151 and section 153, where the Assessing Officeris satisfied that any money, bullion, jewellery orother valuable article or thing or books of accountor documents seized or requisitioned belongs orbelong to a person other than the person referredto in section 153A, then the books of account ordocuments or assets seized or requisitioned shallbe handed over to the Assessing Officer havingjurisdiction over such other person and thatAssessing Officer shall proceed against each suchother person and issue such other person noticeand assess or reassess income such other personin accordance with the provisions of section 153A: Provided that in case of such other person, thereference to the date of initiation of the searchunder section 132 or making of requisition undersection 132A in the second proviso to section153A shall be construed as reference to the dateof receiving the books of account or documents orassets seized or requisitioned by the AssessingOfficer having jurisdiction over such otherperson.” ITA.296/13 & con. cases 7.Reading of this provision shows that it begins with anon obstante clause excluding the sections mentionedtherein and as per this section, where the AssessingOfficer is satisfied that any money, bullion,jewellery or other valuable article or thing or booksof account or documents seized in a branch undersection 132 or requisitioned under section 132A,belongs or belong to a person other than the personreferred to in section 153A, then the books ofaccount or documents or assets seized orrequisitioned shall be handed over to the AssessingOfficer having jurisdiction over such other personand the jurisdictional Assessing Officer shallproceed against such other person and issue suchperson notice and assess or reassess the income ofsuch other person in accordance with the provisionsof section 153A. 8. Section 153A, together with its proviso, read thus: “153A. Assessment in case of search or requisition-Notwithstanding anything contained in section 139,section 147, section 148, section 149, section 151and section 153, in the case of a person where a search is initiated under section 132 or books ofaccount, other documents or any assets arerequisitioned under section 132A after the 31stday of May, 2003, the Assessing Officer shall- (a) issue notice to such person requiring him tofurnish within such period, as may be specifiedin the notice, the return of income in respectof each assessment year falling within sixassessment years referred to in cause (b), inthe prescribed form and verified in theprescribed manner and setting forth suchother particulars as may be prescribed and theprovisions of this Act shall, so far as may be,apply accordingly as if such return were areturn required to be furnished under section139:furnish within such period, as may be specifiedin the notice, the return of income in respectof each assessment year falling within sixassessment years referred to in cause (b), inthe prescribed form and verified in theprescribed manner and setting forth suchother particulars as may be prescribed and theprovisions of this Act shall, so far as may be,apply accordingly as if such return were areturn required to be furnished under section139: (b) assess or reassess the total income of sixassessment years immediately preceding theassessment year relevant to the previous yearin which such search is conducted orrequisition is made:assessment years immediately preceding theassessment year relevant to the previous yearin which such search is conducted orrequisition is made: provided that the Assessing Officer shallassess or reassess the total income in respect ofeach assessment year falling within such sixassessment years: (b) assess or reassess the total income of sixassessment years immediately preceding theassessment year relevant to the previous yearin which such search is conducted orrequisition is made:assessment years immediately preceding theassessment year relevant to the previous yearin which such search is conducted orrequisition is made: provided that the Assessing Officer shallassess or reassess the total income in respect ofeach assessment year falling within such sixassessment years: Provided further that assessment orreassessment, if any, relating to any assessmentyear falling within the period of six assessment years referred to in this section pending on thedate of initiation of the search under section 132or making of requisition under section 132A, as thecase may be, shall abate.” 9.This provision also starts with a non obstante clauseexcluding the provisions that are excluded in section153C and it authorises the Assessing Officer to issuenotice to the other person mentioned in section 153C,requiring him to furnish within such period as may bespecified in the notice, the return of income inrespect of each assessment year falling within sixassessment years referred to in clause (b), in theprescribed form and verified in the prescribed mannerand setting forth such other particulars as may beprescribed. excluding the provisions that are excluded in section153C and it authorises the Assessing Officer to issuenotice to the other person mentioned in section 153C,requiring him to furnish within such period as may bespecified in the notice, the return of income inrespect of each assessment year falling within sixassessment years referred to in clause (b), in theprescribed form and verified in the prescribed mannerand setting forth such other particulars as may beprescribed. 10.A comparative analysis of the provisions containedin sections 153A and 153C reveal that jurisdictionunder section 153C can be invoked by the AssessingOfficer only when money, bullion, jewellery or othervaluable article or thing or books of account ordocuments are seized or requisitioned and it is foundthat the seized or requisitioned articles belongs orin sections 153A and 153C reveal that jurisdictionunder section 153C can be invoked by the AssessingOfficer only when money, bullion, jewellery or othervaluable article or thing or books of account ordocuments are seized or requisitioned and it is foundthat the seized or requisitioned articles belongs or belong to a person other than the person referred toin section 153A. In such a case, the AssessingOfficer shall hand over the books of account ordocuments or assets seized or requisitioned to theAssessing Officer having jurisdiction over such otherperson. Thereupon, it is for the Assessing Officerhaving jurisdiction to proceed against such otherperson by issuing notice and complete assessments orre-assessments as the case may be, in accordance withsection 153A. Therefore, the fundamentaljurisdictional requirement for invoking the powersunder section 153C is the seizure or requisitioningof books of account or documents or assets whichbelong to a person other than the person referred toin section 153A. Otherwise, the Assessing Officerhas no jurisdiction at all to proceed under section153C. Therefore, the conclusion of the Tribunal thatin the absence of search material, proceedings undersection 153C cannot be initiated by the AssessingOfficer, which finding is consistent with theprecedents referred to by the Tribunal itself, doesnot spell out any illegality. 11.In so far as the judgment of this court inITA.169/15 and connected cases is concerned, thatjudgment was rendered in the context of an assessmentunder section 153A simplicitor and not an assessmentunder section 153C read with section 153A.Therefore, we do not find any relevance to thejudgment in ITA.159/15 and connected cases in so faras these appeals are concerned. ITA.169/15 and connected cases is concerned, thatjudgment was rendered in the context of an assessmentunder section 153A simplicitor and not an assessmentunder section 153C read with section 153A.Therefore, we do not find any relevance to thejudgment in ITA.159/15 and connected cases in so faras these appeals are concerned. 12.However, after concluding on the necessity of therecovery of materials on search or requisitioning forinitiating proceedings under section 153C, it is seenthat the Tribunal has found that in the search, saledeed dated 27.10.2000 and balance sheet as on31.3.2005 were found. It was therefore that, afterclarifying the legal requirements for an assessmentunder section 153C, the Tribunal went into the meritsof the issues raised and decided the appeals. recovery of materials on search or requisitioning forinitiating proceedings under section 153C, it is seenthat the Tribunal has found that in the search, saledeed dated 27.10.2000 and balance sheet as on31.3.2005 were found. It was therefore that, afterclarifying the legal requirements for an assessmentunder section 153C, the Tribunal went into the meritsof the issues raised and decided the appeals. 13.The second issue that was considered by the Tribunalis on the scope of the proviso to section 143(2).This proviso states that no notice under clause (2)of section 143 shall be served on the assessee afteris on the scope of the proviso to section 143(2).This proviso states that no notice under clause (2)of section 143 shall be served on the assessee after the expiry of 12 months from the month in which thereturn is furnished. The Tribunal found that thereturn of income for the assessment years 2001-02,2003-04, 2004-05 and 2005-06 were filed on 30.7.2001,28.11.2003, 27.7.2004 and 1.2.2006 respectively. TheTribunal took note of the fact that search was madeonly on 13.2.2007 and that by that time, 12 months'period had already expired from the date of filing ofreturns for the assessment years 2001-02, 2003-04,2004-05 and that even for the assessment year 2005-06, the period expired on 31.3.2007. On that basis,the Tribunal held that for the assessment year 2001-02, 2003-04, 2004-05 and 2005-06, the assessmentproceedings are terminated/concluded by operation oflaw and were not pending. Therefore, according tothe Tribunal, for these assessment years, the incomedisclosed in the regular returns before the date ofsearch cannot be re-assessed under section 153C afterthe search. 14.Learned senior counsel for the Revenue contendedthat this conclusion of the Tribunal relying on theproviso to section 143(2) is not only against thethat this conclusion of the Tribunal relying on theproviso to section 143(2) is not only against the ITA.296/13 & con. cases statutory provisions but is also opposed to theprinciples laid down in the judgment of the DelhiHigh Court in Ashok Chaddha v. Income-Tax Officer[(2011) 337 ITR 138] and the Panjab and Haryana HighCourt in Tarsem Singla v. Deputy Commissioner ofIncome Tax [(2016) 385 ITR 138]. This contention wascontradicted by the learned counsel appearing for theassessee and according to him, the terms of theproviso are plain and clear and that therefore, thetime limit prescribed in the proviso should applyeven to an assessment under section 153C. ITA.296/13 & con. cases statutory provisions but is also opposed to theprinciples laid down in the judgment of the DelhiHigh Court in Ashok Chaddha v. Income-Tax Officer[(2011) 337 ITR 138] and the Panjab and Haryana HighCourt in Tarsem Singla v. Deputy Commissioner ofIncome Tax [(2016) 385 ITR 138]. This contention wascontradicted by the learned counsel appearing for theassessee and according to him, the terms of theproviso are plain and clear and that therefore, thetime limit prescribed in the proviso should applyeven to an assessment under section 153C. 15.We have considered the submissions made. It is truethat proviso section 143(2), as it stood at therelevant time, mandated that no notice under clause(2) of section 143 shall be served on the assesseeafter the expiry of 12 months from the end of themonth in which the return is furnished. In thiscontext, the first question is whether this provisionis applicable at all to assessments completed undersection 153C. We have already extracted sections153C(1) and also section 153A in the earlier part ofthis judgment. We have also taken note of the fact that both these provisions start with a non obstanteclauses, excluding among others, section 149 in itstotality. If that be so, the legislative intentionis plain and clear that the restrictive provisionscontained in section 149 are excluded to anassessment that is completed under section 153C.This precisely is the view taken by the Delhi HighCourt in its judgment in Ashok Chaddha (supra), whereit has been held thus: “9. There is no specific provision in the Actrequiring the assessment made under section 153Ato be after issue of notice under section 143(2) ofthe Act. Learned counsel for the assessee placesheavy reliance on the judgment of the hon'bleSupreme Court in Hotel Blue Moon [2010] 321 ITR362 (SC) wherein it was held that where anassessment has to be completed under section 143(3) read with section 158BC, notice under section143 (2) must be issued and omission to do socannot be a procedural irregularity and the sameis not curable. It is to be noted that theabovesaid judgment was in the context of section158BC. Clause (b) of section 158BC expresslyprovides that “the Assessing Officer shallproceed to determine the undisclosed income ofthe block period in the manner laid down in section158BB and the provisions of section 142, sub- sections (2) and (3) of section 143, section 144and section 145 shall, so far as may be, apply. Thisis not the position under section 153A. The lawlaid down in Hotel Blue Moon [2010] 321 ITR 362(SC), is thus not applicable to the facts of thepresent case. 10. The decision of Lunar Diamonds Ltd. [2006]ITR 1 (Delhi), Vardhman Estate [2006] 287 ITR368 (Delhi) and Bhan Textiles P. Ltd. [2006] 287ITR 370 (Delhi) relied upon by learned counsel forthe assessee related to the requirement ofservice of notice upon the assessee within aprescribed time and thus not applicable to bepresent case. The case of Pawan Gupta [2009]318 ITR 322 (Delhi) related to a mandatory issueof notice under section 143(2) of the Act in thecase of regular assessment as also on blockassessment. This being not a case of assessmentbased on search under section 153A, the same isnot applicable to the present case. In the case ofRaj Kumar Chawla [2005] 277 ITR (AT) 225(Delhi) {SB} relied upon by learned counsel for theassessee was that of the Tribunal, wherein, a viewwas taken that if a return filed under section 148of the Act is sought to be scrutinized, thecompliance with the provision contained in theproviso under section 143(2) of the Act ismandatory. The issue of requirement of noticeunder section 143(2) for an assessment undersection 147 came up for consideration before thiscourt recently in CIT v. Madhya Bharat Energy Corporation Ltd. (I.T.A.No.590 of 2008, decidedon July 11, 2011) [2011] 337 ITR 389 (Delhi). Inthat case also, this court has held that in theabsence of any specific provision under section147 of the Act, the issuance of notice undersection 143(2) cannot be held to be a mandatoryrequirement. 11. It is also to be noted that section 143Aprovides for the procedure for assessment in caseof search or requisition. Sub-section (1) startswith a non obstante clause stating that it was“notwithstanding” anything contained in sections147, 148 and 149, etc. Clause (a) thereof providesfor issuance of notice to the person searchedunder section 132 or where documents, etc., arerequisitioned under section 132A, to furnish areturn of income. This clause nowhere prescribesfor issuance of notice under section 143(2).Learned counsel for the assessee/appellant soughtto contend that the words, “so far as may beapplicable” made it mandatory for issuance ofnotice under section 143(2) since the return filedin response to a notice under section 153A was tobe treated as one under section 139. Learnedcounsel relies upon R.Dalmia v. CIT [1999] 236ITR 480 (SC) wherein the question of issue ofnotice under section 143(2) was examined withreference to section 148 by the Supreme Court inthe context of section 147. The apex court heldas under (page 488): “As to the argument based upon sections 144A,246 and 263, we do not doubt that assessmentsunder section 143 and assessments andreassessments under section 147 are different,but in making assessment and reassessmentsunder section 147 the procedure laid down insections subsequent to section 139, including thatlaid down by section 144B, has to be followed.” 12. The case of R.Dalmia v. CIT [1999] 236 ITR480 (SC) primarily was with regard to theapplicability of section 144B and section 153 (sinceomitted with effect from April 1, 1989) to theassessment made under sections 147 and 148 andthus cannot be said to be the decision laying downthe law regarding the mandatory issue of noticeunder section 143(2). 13. The words “so far as may be” in clause (a) ofsub-section (1) of section 153A could not beinterpreted that the issue of notice under section143(2) was mandatory in case of assessment undersection 153A. The use of the words “so far asmay be” cannot be stretched to the extent ofmandatory issue of notice under section 143(2).As is noted, a specific notice was required to beissued under clause (a) of sub-section (1) ofsection 153A calling upon the persons searched orrequisitioned to file return. That being so, nofurther notice under section 143(2) could becontemplated for assessment under section 153A.” ITA.296/13 & con. cases 16. Following the judgment in Ashok Chaddha (supra),the Punjab & Haryana High Court in Tarsem Singla(supra) also reiterated the same legal position.Obviously therefore, there is no requirement of anotice under section 143(2) for completing anassessment under section 153C and if that be so, thequestion of time limit prescribed under the provisoto section 143 (2) does not have any relevance forassessments under section 153C. Therefore, thatfinding of the Tribunal that the assessments for theyears 2001-02, 2003-04, 2004-05 and 2005-06 areterminated/concluded by operation of law and that theassessee cannot be re-assessed under section 153C isuntenable and is set aside. 17.The third issue debated before us was regarding thefinding of the Tribunal with respect to ITA.346/11concerning the assessment year 2005-06, againstwhich, ITA.296/13 has been filed by the Revenue. Theissue raised in this appeal is with regard totelescoping of investment of `22,87,818/- in theunaccounted profit of the partnership firm.According to the Revenue, taxability of the firm was 17.The third issue debated before us was regarding thefinding of the Tribunal with respect to ITA.346/11concerning the assessment year 2005-06, againstwhich, ITA.296/13 has been filed by the Revenue. Theissue raised in this appeal is with regard totelescoping of investment of `22,87,818/- in theunaccounted profit of the partnership firm.According to the Revenue, taxability of the firm was considered after allowing all deductions in the handsof the firm as per the Act and the unaccounted profitso computed may or may not have been received by thepartners and that the benefit received by the partnerover and above declared profit from the partnershipbusiness is taxable in the hands of the partners andtherefore, the benefit received by the partnerscannot be telescoped. In that basis, the Revenueimpugned the correctness of the telescoping allowedby the first appellate authority. 18.The Tribunal considered the rival submissions andconcluded the issue in paragraph 31 of its orderthus:concluded the issue in paragraph 31 of its orderthus: “31. We have considered the rival submissions oneither side and also perused the material availableon record. Admittedly, the document SSA-29discloses capital contribution by the assessee tothe firm M/s P.A.Kuriakose Jewelleries. It is alsoan admitted fact that unaccounted income wasdetermined in the hands of M/s.P.A.KuriakodeJewellers on the basis of material found duringthe course of search operation. Therefore, thereis an obvious nexus between the investment shownin the balance-sheet found during the course of search operation and the unaccounted incomedetermined in the hands of M/s.P.A.KuriakoseJewellers. This is what exactly held by Punjab &Haryana High Court in Grover Fabrics (India) (P)Ltd (supra). Therefore, this Tribunal is of theconsidered opinion that the CIT(A) has rightlytelescoped the addition made by the assessingofficer. This Tribunal do not find any infirmity inthe order of the lower authority. Accordingly, theorder of the CIT(A) is confirmed.” 19.Having considered the conclusion of the Tribunal, weare constrained to hold that though the Tribunal tooknote of the rival submissions, without giving anyvalid reasons, it confirmed the order of theCommissioner of Income Tax (Appeals) allowingtelescoping. We are, therefore, unable to sustainthe order of the Tribunal impugned in ITA.296/13,concerning the assessment year 2005-06. 20.The other issues that are considered by the Tribunalare with respect to addition of gift, agriculturalincome and the addition of on-money said to have beenreceived on sale of land. However, the findings ofthe Tribunal on these issues are basically factualare with respect to addition of gift, agriculturalincome and the addition of on-money said to have beenreceived on sale of land. However, the findings ofthe Tribunal on these issues are basically factual ITA.296/13 & con. cases and the Revenue has not framed any question of law inthis regard. 21.In the light of the above, answering the question oflaw concerning section 153C in favour of the assesseeand other questions viz., applicability of theproviso to section 143(2) and telescoping, in favourof the Revenue, and setting aside the orders of theTribunal to the extent indicated above, these appealsare disposed of. The matter is remitted to theTribunal which shall dispose of the appeals afterhearing both sides. Sd/- ANTONY DOMINIC, Judge. Sd/- DAMA SESHADRI NAIDU, Judge. kkb.