Fakkir Mohammed, J.
1. On the directions of this court in TCPs. Nos. 272 to 274 of 1975, the Income-tax Appellate Tribunal, Madras, has referred the following questions of law as the Reference Applications Nos. 693 to 695 of 1973-74 made by the Department were dismissed by the Tribunal.
Question in respect of the assessee's appeal :
'(i) Whether, on the facts and in the circumstances of the case, the Income-tax Officer was not justified in assessing the assessee in the status of 'association of persons'
(ii) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal's finding is based on proper evaluation of the materials before it
(iii) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal's view that the assessee cannot be assessed in the status of 'association of persons' is a reasonable one ?'
Question in respect of Department's Appeals :
'(i) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal is right in law in not upholding the entire assessment in the assessee's case
(ii) Whether, on the facts and in the circumstances of the case, the entire assessment made on the assessee in the status of individual cannot be upheld and that the quantum should be re-determined ?'
2. The facts of the case are briefly as follows :
On August 29, 1964, the police raided a room in Hotel-De-Broadway and found four persons, namely, K. M. Mohideen, M. V. Moosa, Abdulla and V. P. Ibrahim. On searching the room, the police found cash of Rs. 89,130, one refrigerator, two gold rings, gold bar and 383 wrist watches from K. M. Mohideen. They also found cash, watches, Parker fountain pen, etc., with M. V. Moosa. The police seized those articles as the persons had no receipts for them. K. M. Mohideen had stated that he had brought gold watches from Singapore worth Rs. 1 lakh concealed in his holdall. Mossa had stated that he assisted K. M. Mohideen at Bombay in the disposal of smuggled gold and watches. One Abdullah had stated that he was the brother of Moosa and was guarding the smuggled articles left with Mohideen. The police authorities entrusted the matter with the customs authorities. The customs authorities obtained statements from Mohideen and Moosa.
3. Mohideen denied his earlier statement made on May 21, 1965, by stating that the cash of Rs. 89,000 was borrowed from M/s Damodar Changanlal and Co., Bombay, which was disproved by the customs authorities. The cash was, however, returned by the customs authorities to Mohideen and Moosa after obtaining a joint receipt from them. The Customs Department, after detailed investigation, confiscated a part of the goods and released the cash and some of the goods to the assessees. As the assessees were not able to put forward any definite explanation as to the nature and source of the cash and goods seized which were in their possession, there were reasons to believe that the assessees had concealed the particulars of the income. Hence, a notice under s. 148 of the I.T. Act was issued to the assessees and in response to the same, the assessees filed nil returns. Out of the cash amount of Rs. 89,000 and odd, Mr. Mohideen showed a cash holding of Rs. 46,000 at the end of the assessment year 1965-66, representing a moiety of the same and Mr. Moosa showed a cash holding of Rs. 46,000 being the other moiety.
4. In the assessment order, the ITO has stated that because Moosa and Mohideen did not furnish proper explanation regarding the source for the possession of cash of Rs. 89,000 and odd and the goods, it was assumed that both the persons had acted together with the object of smuggling contraband goods into India for mutual gain, that the assessees did not produce any satisfactory evidence for the source of possession of cash and goods, that notices were issued under s. 148 of the Act, that in response to the notice they filed nil returns, that in the course of the assessment proceedings it was represented that there was no association of persons, that they did not produce any evidence to prove the nature and source of the assets, that conflicting statement had been given to the police authorities and to the customs authorities regarding the ownership of the cash, that first Mohideen claimed ownership confirmed their mutual relationship and concerted association in their enterprise, that such conclusion was supported by ample evidence and by the return of cash by the customs authorities to Moosa and Mohideen jointly as belonging to them in common and that both of them accepted the money as such from the customs authorities by issuing join receipt.
5. In his assessment order, the ITO has assessed the value of the goods including cash at Rs. 1,10,527 as the income of the assessees, viz., association of persons, from 'other sources'. The ITO added Rs. 20,000 for household expenses of the members of the association. Taking the annuity deposit of Rs. 16,320, the ITO computed the reduced total income as Rs. 1,14,210 and passed the assessment order dated March 28, 1970.
6. In the protective assessment order, the ITO has mentioned that the case was discussed with the assessees and they filed statements at the time of hearing, that the statements showed a cash holding of Rs. 46,000 each at the end of the assessment year 1965-66, which represented the moiety of the cash seized by the police and customs authorities from the assessees and that since the assessees failed to produce any positive evidence as to the source of the cash and goods seized from them, protective assessment also was made under s. 143(3) of the Act in addition to penalty proceedings, which were separately initiated. The ITO has made assessments on each one of the assessees and determined the total income of Moosa as Rs. 74,365. After deducting the annuity deposit of Rs. 9,300, he computed the reduced total income at Rs. 65,065. Similarly, in the case of K. M. Mohideen, a protective assessment was made by computing the total income at Rs. 1,17,972 deducting the annuity deposit of Rs. 14,750 and assessed the tax on the reduced total income of Rs. 1,03,320. The protective assessment order also was passed on the same date, viz., March 28, 1970.
7. The assessees took he matter on appeal to the AAC, Madras, in I.T.A. No. 317 of 1970-71, challenging the assessment as an association of persons. The Department went on appeal in I.T.A. Nos. 316 and 318 of 1970-71, questioning the protective individual assessment orders. The AAC has confirmed the order of the ITO in respect of his assessment as an association of persons and deleted the protective individual assessment, which have resulted in the filing of I.T.A. Nos. 1357 and 1358 of 1970-71 by the Department and I.T.A. No. 1456 of 1970-71 by the assessees before the Income-tax Appellate Tribunal.
8. The Income-tax Appellate Tribunal, by its common order dated January 9, 1974, has allowed the appeal of the assessees holding that there were no sufficient circumstances to hold that there was an association of persons or that there was a joint activity to smuggle goods and to make profit out of it and dismissed the two appeals filed by the Department. The Income-tax Appellate Tribunal has given the following main reasons in the latter half of paragraph 18 of its order that the admission of ownership in equal halves had come only long after the Department made up its mind to proceed against the assessees as an association of persons, that at that time when the Department so though, the materials that weighed with the Department were the first version compiled with the joint receipt given to the customs authorities, the effect of which joint receipt the Tribunal has discarded, as it was given only under force of circumstances that it is not proper to tear out a certain statement out of context in which it was made and to make use of it to establish a case of an association of person. It is the above reasons that are attacked by the Department in these references as baseless and without any material whatsoever. To dislodge the above conclusion of the Tribunal made in the latter half of paragraph 18 of the order, the earlier discussion made by the Tribunal in the earlier paragraphs have been brought to out notice.
9. In paragraph 2 of its order, the Tribunal has proceeded to discuss about the raid made by the Madras City Police on August 29, 1964, on the information received from one Kaniklal at the junction of Broadway and Mannady, Madras, stating that he had a bag bearing marks 'T. S. Ganpatram, Singapore' in which 100 watches of foreign made and cash of Rs. 395 were found, which was seized by the city police, that on further information furnished by Kaniklal to the effect that he had received the watches from K. M. Mohideen staying in Room No. 1, Hotel-De-Broadway, Madras, and that he had selected the watches from the large number of watches shown to him by Mohideen when the latter was approached through Moosa.
10. In paragraph 3 of the order, the Tribunal has discussed about the search made by the police party in room No. 1, Hotel-De-Broadway, and the detection of four persons, namely, V. P. Ibrahim, M. Moosa, M. Abdullah (brother of Moosa) and K. M. Mohideen, the handing over of keys of leather suit case and leather hand bag by K. M. Mohideen to the police, which led the police to open the bag and suit case to find certain clothes, passport dated July 24, 1963, and valid up to March 23, 1966, in the name of Mohideen, Indian currency notes to the total of Rs. 89,130, four gold rings, gold bar, three biscuit tins containing 383 watches of foreign make, wrapped in packets and concealed among the biscuits and the holdall containing few pieces of cloth and travel documents with an invoice for one package of refrigerator and one package of crockery, despatched from Singapore and received at Madras on August 28, 1964.
11. In paragraph 4, the Tribunal has discussed about the detection of a packet containing 40 Enicar wrist watches of foreign make, 1 titus calendar wrist watch of foreign make, a Parker fountain pen, a purse containing Indian currency of Rs. 676, 15 Malayan dollars, a cloth bag containing two keys and an holdall containing certain clothes, shoes and a packet note book. The Tribunal has further discussed about the verification made by the police with the hotel authorities to find out that rooms Nos. 1 and 16 had been occupied by K. M. Mohideen at 6.00 a.m. on August 29, 1964, giving the address as 'K. Mohideen and party, Payyali, Badagara, Ilayangudi (names of certain towns in Kerala) arrived from Bombay' and that room No. 16 was found empty.
12. In paragraph 5, even at the outset, the Tribunal has made the following observations :
'When we asked the counsel for the assessees whether that was a correct summary of what these persons told the police, he did not dispute its accuracy.'
13. The normal conclusion that can be arrived at from the discussions made by the Tribunal in paragraphs 2 to 4 of its order will be that there was a joint venture and activity by Mohideen and Moosa to earn profit by the sale of smuggled foreign in India. The articles were not seized either from the house of Mohideen or from the house of Moosa, but were seized from a common place, viz., room No. 1, Hotel-De-Broadway, though engaged in the name of Mohideen. Both of them do not appear to have stated before the police that they had their own individual avocation and that the articles seized were in the separate possession of the two individuals. Thus the initial statements made by the assessees before the police had been admitted to the correct by the learned counsel for the assessees when the Tribunal questioned the counsel as to the correctness of the statements made to the police. Therefore, the Tribunal is not justified in its observations made in paragraph 18 to the effect that the assessees were constrained by force of circumstances to make a joint claim for the purpose of getting refund of the cash from the customs authorities.
14. In the subsequent portion of paragraph 5, the Tribunal, at the request of the learned counsel for the assessees, has extracted the portions and the substance of the statements given by Mohideen, Moosa, Abdullah and Ibrahim and underlined certain portions in support of the argument of the learned counsel for the assessees before the Tribunal to say that those underlined portions and statements do not support the view of the Department that the assessees were an association of persons. According to the extracted portions of the statement of K. M. Mohideen, he had smuggled the foreign goods into India and handed them over to Moosa, who in turn handed them over the Kaniklal and that the cash was also the sale proceeds of the smuggled gold and watches disposed of at Bombay. According to the extracted portion of the statement of Moosa, Moosa met Mohideen at Bombay, assisted Mohideen in the disposal of the smuggled gold and watches to the tune of over a lakh or rupees, proceeded to Ajmeer and other places returned to Madras along with Mohideen, Ibrahim and Abdullah on August 29, 1964, and the goods and cash found with him belong to Mohideen. According to the extracted portion of the statement of Abdullah, brother of Moosa, he had been directed by his brother to guard the smuggled articles that were with Mohideen and he had also been entrusted with wrist watches for the purpose of disposal at Bombay for earning commission. After the reproduction of the extracts of the statements, the Tribunal has proceeded to refer to the depositions of the above four persons, who were found in room No. 1, Hotel-De-Broadway, Madras, and Kaniklal by the officers of the Customs Department, deposed on September 1, 1964. The extracted portion of the deposition of Kaniklal is mere corroboration of his earlier statement given to the city police. In his deposition before Customs Officer on September 1, 1964, Mohideen varied his statement from the statement given to the police by stating that he had arrived at Bombay with 600 wrist watches and Indian currency amounting to Rs. 89,000 concealed in his bedding, that he proceeded to Ajmeer on July 12, 1964, and returned to Bombay after 40 days and that he again met Moosa and others only thereafter. In the extracted portion of the statement of Moosa before the customs, practically he has corroborated his earlier statement made to police. So far as the extracted portion of the statements of Ibrahim and Abdullah are concerned, there are not much variations.
15. After considering the said variations in the statements given before the police and the customs officer, the Tribunal has discussed under paragraph 7 of the order, about the conclusion arrived at by the customs authorities to the effect that Mohideen and Ibrahim arrived at Bombay from Singapore, the former by air on or about July 12, 1964, and the latter by steamer on August 25, 1964, that some of the Indian currency notes seized from Mohideen bore stamps indicating that they were in circulation in India after his arrival at Bombay, that, therefore, they could not have been smuggled from abroad as stated by him before the Customs Officer alone on September 1, 1964, and that, therefore, they could not have been smuggled from abroad as stated by him before the Customs Officer alone on September 1, 1964, and that, therefore, Mohideen was summoned again by the customs authorities on April 3, 1965, for recording his statement. The Tribunal has further proceeded to observe that in the statement given by Mohideen on April 3, 1965, he had resiled from the previous statement given before the police on August 29, 1964, and the statement given before the customs authorities on September 1, 1964, by stating that the statements were given under pressure, that they were recorded wrongly by the authorities, that he had disowned the watches, gold jewellery and currency notes seized from him and that he claimed only two watches, two rings, cash of Rs. 130 and some sundry goods as his belongings along with a suit case, a hand bag and a plastic air-hand bag. The Tribunal has further proceeded to discuss that Mohideen had stated that he met Moosa on July 22, 1964, at Bombay in room No. 9, Sathar Bishi Lodge, Bombay, and stayed with him till they left for Madras, that on their way to Madras, Mohideen was informed by Moosa that a sum of Rs. 90,500 odd had been kept in Moosa's bed and that the police seized all the monies only from the holdall of Moosa and Rs. 130 alone from the shri pocket of Mohideen.
16. In paragraph 8 of the order, the Tribunal has discussed about the statements recorded on May 21, 1965 from Mossa, who was summoned again and stated to the effect that the entire cash seized from the Hotel-De-Broadway room had been received by him on a hundi loan from Bombay, that he had no connection with the wrist watches seized by the police, that he had not given the statement before the Customs Officer on September 1, 1964, that he had gone to Bombay on August 20, 1964, by air from Mangalore (Canara District of Karnataka State) and got a loan of Rs. 90,000 from Damodar Changanlal and Company through one Hanthaj Oswal of Bombay, that out of this sum he kept Rs. 89,500 in his bedding and Rs. 500 in his shirt pocket till the same were seized by the police. The further extracted portion of the statement deposed by Moosa on May 21, 1965, is in conformity with the resiled statement given by Mohideen to some extent. It is further stated by Moosa that the wrist watches and Brittania biscuit tins, which were seized by the police were not recovered from him, that the police seized only Rs. 90,176 from Moosa in Hotel-De-Broadway and that he also produced two receipts dated August 24, 1964, and August 27, 1964, for payment of interest at Bombay.
17. After the above discussion, the Tribunal has discussed in paragraph 9 of the order that the further investigation undertaken by the Customs Department revealed that Mohideen and Moosa had hired and stayed in room No. 9, Sattar Bishi Lodge at Bombay from July 21, 1974, that the charges for the room were paid by Mohideen, and that Damodarads Valji of M/s. Damodar Changanlal and Company denied having given the loan of Rs. 90,000 to Moosa and they even denied knowledge of Moosa.
18. In paragraph 10 of the order, the Tribunal has discussed about the further action taken by the customs authorities in serving notices on Mohideen, Moosa, Kaniklal, Ibrahim and Abdullah to explain as to why the watches, currencies and other articles seized from them should not be confiscated and penal action be taken under the Customs Act, that they tendered their explanations among which the explanations of Abdullah and Ibrahim were having the same tenor and were in consonance with their previous statements, that the explanation of Mohideen and Moosa were of the same tenor as those of their previous statements made before the Customs Officer, the Mohideen denied ownership of cash and watches, while Moosa claimed ownership of money alone, denying the ownership of watches, and that Kaniklal had resiled from his earlier statement and disclaimed the possession of all the 160 watches. After obtaining the above explanations, the Collector of Customs passed an order on February 21, 1968 confiscating almost all the watches, gold bar, refrigerator, etc., and directing refund of Rs. 276 to V. P. Ibrahim, Rs. 395 to Kaniklal, Rs. 676 to Moosa and Rs. 89,130 seized from K. M. Mohideen and claimed by Moosa to the parties.
19. In pursuance of the said order passed by the Collector of Customs on February 21, 1968, Mohideen and Moosa executed a joint receipt and received the cash of Rs. 89,130, at which point of time, the Income-tax Department had come to the scene on April 6, 1968, and seized the amount of Rs. 89,130 from Mohideen and Moosa. The customs authorities launched a prosecution against Mohideen, Moosa, Kaniklal and Ibrahim (Abdullah excluded) for offences under s. 135 of the Sea Customs Act and r. 126B (2)(d) read with the provisions of the Defence of India Rules (G.C.), in which all of them were acquitted by a judgment dated February 8, 1971. After the seizure of cash by the Income-tax Department, notices were issued under s. 143 of the I.T. Act, 1961, to the assessees as an association of persons and the assessees filed a nil return representing that there wan no association of persons.
20. The above-stated facts, which are not disputed, will not admit of any conclusion that there was no joint activity by Mohideen and Moosa in disposing of the smuggled foreign gold and wrist watches and other articles in India, to earn profit by selling them. The assessees, being smugglers whether it is Mohideen or Moosa, are not persons, whose statements may be given weightage as given to the statements of an ordinary citizen. We can understand that the above persons who indulged in illegal activity, gave statements out of fear for the police at the time of their apprehension, while the contrabands were seized from them. After the passage of days, the fear for the authorities was removed by their association with their counterparts from whom they got advice and they have proceeded to give statements in the subsequent stages without any fear for the authorities. The assessees themselves have disowned their statements stage by stage and in the final stage when they were served with notice of confiscation, Mohideen disowned cash and wrist watches, while Moosa claimed the cash alone, though disowned the watches. After the orders were passed by the Customs Collector for the refund of cash, both the assessees have joined together and gave a joint receipt to receive the entire cash of Rs. 89,130. It was open either amount as belonging to any single individual, as the case may be. It cannot be said by any stretch imagination that they were forced by any circumstance at that stage to claim the said amount jointly by means of a joint receipt.
21. First, they had foreseen the prosecution. Subsequently, they had foreseen the claim to the seized cash and articles. At that stage, both of them have conjointly received the amount by issuing a joint receipt. Therefore, we find absolutely no circumstance or any pressing need, which had constrained the assessees to admit the ownership of cash in equal half shares, consequent on the Department having made up its mind to proceed against the assessees as an association of persons, as incorrectly and without basis as observed by the Tribunal. In fact, the Income-tax Department came to the scene, as observed by the Appellate Tribunal only on April 6, 1968, whereas the Collector of Customs passed his order on February 21, 1968 for the refund of cash. Therefore, by no stretch of imagination it can be said that the Income-tax Department had contemplated on February 21, 1968, to treat the assessees, Mohideen and Moosa, as an association of persons, since it was the Customs Collector who had passed the orders to refund Rs. 89,130 to both parties and, accordingly, they both went with a joint receipt for taking back the amount. There is non and there cannot be any material for any surmise that the Collector of Customs had been influenced to pass an order of refund or Rs. 89,130 jointly to Mohideen and Moosa in anticipation of assessing them in the status of association of persons. On the other hand, the assessees had voluntarily given explanations on April 3, 1965, to the notice of confiscation, which was served on them earlier in which Mohideen disclaimed the ownership of cash and watches, while Moosa claimed the ownership of cash alone, denying the ownership of watches. In fact, the Tribunal has given weightage to one of the varying statements given by the smugglers and has not given weightage to the proceedings of the departmental authorities.
22. We are constrained to observed that the conclusion of the Tribunal, which is reproduced hereunder is perverse as it is contrary to is own findings rendered earlier :
'The admission that they owned that cash in equal halves is intimately coupled with the explanation that it represents their past savings. To ignore that portion and to add the other portion relating only to admission to the first version is an unfair exercise in the appreciation of evidence. It has to be remembered that the admission of ownership in equal halved comes only long after the Department made up its mind to proceed against the assessees as an association of persons. At that time when the Department so thought, the materials that weighed with the Department were the first version coupled with the joint receipt given to the customs authorities, the effect of which joint receipt we have discarded as discussed above as it was given only under force of circumstances. So it is not proper to tear a certain statement out of the context in which it was made and to make use of it to establish the case of an association of persons. The Income-tax Officer also has not made use of its admission of ownership in equal halves to establish the case of an association of person.'
23. The above observation is quite contrary to its own finding that the sum of Rs. 89,130 represented the sale proceeds of smuggled watches. In the face of its own finding that the sum of Rs. 89,130 represented the sale proceeds of watches, how can the Tribunal say that the sharing of that amount should be construed in the light of their explanation that the sum represented their past savings. The observation that 'it has to be rendered that the admission of ownership in equal halves comes only long after the Department made up its mind to proceed against the assessees as an association of persons at that time when the Department so thought, the materials that weighed with the Department were the first version coupled with the joint receipt given to the customs authorities....' are quite baseless and not supported by any evidence on record. We are unable to comprehend which admission of ownership made by the assessees and in which statement, either given before the police or given before the Customs Officers on several dates, that has been referred to by the Tribunal. The cumulative effect of several statements given by the assesses, starting from the police up to the representation made by the counsel on behalf of the assessees in the assessment proceedings, will lead to the irresistible conclusion that there was only a joint activity and that alone had forced the assessees to submit a joint receipt to receive the entire amount of Rs. 89,130. The Tribunal has failed to discuss as to why the assessees should filed NIL return first and then claim equal amounts at the stage of assessment proceedings. Similarly, the Tribunal has failed to discuss as to why Mohideen, who had claimed cash in his earlier statements, should resile from those earlier statements and disown the entire cash and wrist watches. This court could not read as to what had passed in the minds of the Tribunal in splitting out some portion in some statement and some portion in the later statements for the purpose of deleting the assessment order as an association of persons, which was passed after a careful consideration of the entire previous history up to the date when the Collector of Customs had passed order for return of the entire cash amount jointly to the parties on February 21, 1968. Unless there was a joint activity for the purpose of earning income, the assessees would not have ventured to give a joint receipt.
24. It can also be argued either way. That is, Mohideen could have claimed the entire amount as belonging to him in continuation of his earlier statements given to the police and to the customs authorities. If Mohideen subsequently had chosen to disown the cash and wrist watches out of fear of subsequent prosecution that might be launched against him, he must alone be held responsible for his irreconcilable and inconsistent statement, if such statement finally resulted in the passing of orders adversely to himself. In fact, he ought not to have claimed even a single pie, after his explanation submitted before the Collector of Customs disowning the cash and wrist watches. Similarly, Moosa also ought not to have claimed any amount in Rs. 89,130 in pursuance of his earlier statement given to the police and to the customs authorities. Therefore, the very conduct of the smugglers clearly show that there was joint activity not only in action but also in though (intention) between them for the purpose of their joint earning. The joint venture herein is an unlawful and a secret one for which there cannot be any direct evidence and only from the conduct and circumstance, the intention of the parties can be gathered. This is one such case where we find ample circumstances, party's conduct and materials for arriving at the conclusion that there was joint activity, joint business and joint enterprise for earning profit.
25. It is an admitted fact that Mr. Mohideen, Moosa, Ibrahim and Abdullah hail from Kerala and their places of activity in India, according to the evidence, was Ajmeer, Bombay and Madras. The goods have been smuggled from Singapore into India and Rs. 89,130 represented the sale proceeds of such contraband articles that were smuggled into India. One person alone, in the circumstances, could into have successfully operated such a costly venture. In none of the statements, the individuals have stated that except Mohideen, the rest were employees. Though in the initial stages, Kaniklal mentioned about the commission as the remuneration, there is no material to arrive at a conclusion that Mohideen was the principal and the rest were commission agents. Ibrahim was the brother of Mohideen and Abdullah is the brother of Moosa. The above concerted activities of the four persons, hailing from Kerala, only probabilise the joint activity by the four persons belonging to the Kerala State, who had taken rooms in lodges at Bombay and at Madras.
26. Under s. 2(31)(v) of the I.T. Act, 'persons' includes an association of persons or a body of individuals, whether incorporated or not. In the facts and circumstances of this case, Mohideen and Moosa come within the above category or status of persons as defined in s. 2(31)(v) of the I.T. Act. Even assuming for argument's sake that Mohideen alone had smuggled the contraband articles in to India, the disposal of the same had been done only by the joint activity of Mohideen, Moosa, Abdullah, Ibrahim and Kaniklal. Since Ibrahim, Abdullah and Kaniklal did not claim to be the owners of cash of Rs. 89,130 and Mohideen and Moosa alone claimed the same in their various statements given to the authorities, the Department has correctly treated Mohideen and Moosa alone as an association of persons or a body of individuals according to s. 143(3) read with s. 2(31)(v) of the Act. When such is the position, we are unable to see any reasoning in the observation of the Tribunal for holding that the assessees had been pressed by the circumstances to pretend to be the joint owners of the cash, as though the Department had created such a situation for the purpose of assessing them as an association of persons. We are completely disinclined to give any weight to the above observations of the Tribunal, which is prima facie, unsustainable and not based on any material.
27. In the light of the above discussion, we answer the first set of three questions in favour of the Revenue. In view of our answer to the first set of three questions, the other questions which arise out of the protective assessments made by the Revenue do not require to be answered and, hence, these questions are returned unanswered. In the circumstances, we direct the parties to bear their respective costs.