:1: IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.431 OF 2001 The Commissioner of Income Tax. ..Appellant. Vs. Shri.G.R. Madhyan. ..Respopndent. Mr. Vimal Gupta with Mr.P.S.Sahadevan for the Appellant. Ms. Aasifa Khan for the Respondent. CORAM : F.I. REBELLO & R.S. MOHITE, JJ. DATED : 22nd January,2008 PC : 1. This is a appeal by revenue against the order dated 26.2.2001. By this common order a set of appeals preferred by the respondent herein and similar appeals preferred by the appellant herein were disposed of. It may be mentioned that the Assessing Officer in so far as the present respondent is concerned has assessed his income on substantive basis and in so far as respondent Usman M. Khan is concerned has assessed his income on protective basis. The learned Tribunal in Para-9 of its order was pleased to observe as under. "In the light of above discussion, we hold that the assessee (G.R.Madhyan) did not indulge in Matka business; that the Matka business belonged to late Shri. Usman Maqbul Khan and accordingly, the A.O. is not justified in :2: making an addition of Rs.1.35 crores and sustained by the CIT(A) at Rs.97.88 lakhs. The addition of Rs.97.86 lakhs is accordingly deleted". 2. The revenue is in appeal against this finding and order. 3. The late Usman M. Khan had preferred appeals before the ITAT for various assessment years . One such appeal was Income Tax Appeal No.627 of 1999 for the Assessment year 1987-88. The Tribunal noted that Income Tax Appeal No.583 of 1999 to 592 of 1999 relating to Assessment year 1987.88 to 1996-97, In the case of Shri.G.R. Madhyan they had held that the assessee (Shri. G.R. Madhyan) did not indulge in Matka business. They further held in the light of the observations in the case of G.R. Madhyan income is to be assessed in the hands of Usman M. Khan on substantive basis and not on protective basis. The appeal therefore, preferred on this ground was dismissed. The revenue preferred appeal before this court against the order dated 26.2.2001 passed in Income Tax Appeal No.330/2001. This court by its order dated 23.7.2004 held that the finding recorded by the Tribunal are concluded on facts and do not give rise to any substantive question of law and accordingly dismissed the appeal in limine. In other words, the finding of fact recorded by the Tribunal that income is :3: to be assessed in hand of Usman M. Khan on substantive basis has been upheld. 4. Once that finding is upheld, in our opinion, we can confirm the finding of fact recorded by the Tribunal in this appeal. As noted earlier the A.O. had earlier assessed the income on substantive basis in the hands of the respondent and on protective basis in the hands of late Usman Maqbool Khan. Considering the finding of fact recorded by the Tribunal which has been upheld in the appeal preferred by the revenue against Usman M. Khan, in our opinion,the questions of law as framed would not arise and consequently, the appeal stands dismissed. (R.S. MOHITE, J.) (F.I. REBELLO, J.)