C I T JAIPUR vs. RAJIV ARORA

By way of these appeals, the appellant has challenged the judgment and order of the tribunal whereby the tribunal has allowed the appeal of the assessee against the order passed under Section 263 of the Income Tax Act.

This court while admitting the matter has framed following

He contended that from the order of A.O. it was very clear that the file was transferred vide letter No. 249 dated 20.10.2008 and assessment order was passed within a week without examining the matter and without considering the relevant material which was required to be considered and he has also taken us to the order of A.O. and contended that the order passed by the A.O. is without any reasons and in fact the assessment order is passed without any evidence. In that view of the matter, the CIT(A) has taken into consideration provisions of Section 263 of the Income Tax Act and passed the order. He contended that the six points which have been raised by the CIT(A) reads as under:

The assessee has shown purchases from local suppliers. Perusal of the record revealed that no verification of such purchases have been made before passing the order. The BCTT Wing of the Department

The assessee has made investment in mutual funds. Unit of several mutual funds have been redeemed during the period under consideration at loss. The AO has not examined the angle of dividend stripping as per provision of section 94(7) of the income-tax Act.

In the balance sheet and as per details filed during proceedings in respect of investment made in immovable properties by the assessee, the source of investment has neither been examined nor has the investment made been examined with the angle of determination of net wealth of the assessee.

The assessee has substantial interest in M/s Amrapali Jewels Pvt. Ltd. and has advanced substantial amount of loan. The nature of relation

He has contended that after considering the reply, the CIT (A) has passed the following order:-

I have examined the written submission of the assessee vis-a-vis assessment record in the case of the assessee. The details available on order sheet revealed that the AO reaised queries on 28.5.2008 and 26.08.08 without original record of assessee available on his file. The case was transferred to him by ACIT, Circle-7, Jaipur on 20.10.2008 and a fresh notice u/s 143(2) of the Act was again issued by on that date. No fresh query letter was issued after receipt of original record but the details pending on earlier routine queries were accepted. The AO has passed assessment order accepting returned income without discussing any of the issues mentioned above. The details made available by the assessee were not examined by the AO and no investigation was made. The issues raised in the notice u/s 263(1) of the Act referred to above were replied by the assessee but none of the issue was examined by the AO during the course of assessment proceedings.

Counsel for the appellant has also taken us to the order of the Tribunal and contended that the Tribunal 11 observed as under:-

Even the CIT conceded the position that the opinion of the A.O. made the enquiries, elicited replies and there after passed the assessment order. The grievances of the CIT was that the A.O. should have made further enquiry rather than accepting the assessee’s explanation. Therefore it could not be said that it was a case of lack of enquiry as stated above no where the CIT had concluded that opinion of the A.O. was clearly erroneous. Accordingly we

To consider the first contention, it will be apt to quote section 263(1) which is relevant for our purpose : "263. Revision of orders prejudicial to revenue - (1) The Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the assessing officer is erroneous insofar as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment.

There can be no doubt that the provision cannot be invoked to correct each and every type of mistake or error committed by the assessing officer, it is only when an order is erroneous that the section will be attracted. An incorrect assumption of facts or an incorrect application of law will satisfy the requirement of the order being erroneous. In the same category fall orders passed without applying the principles of natural justice or without application of mind.

In the instant case, the Commissioner noted that the Income Tax Officer passed the order of nil assessment without application of mind. Indeed, the High Court recorded the finding that the Income Tax Officer failed to apply his mind to the case in all perspective and the order passed by him was erroneous. It appears that the resolution passed by the Board of the appellant-company was not placed before the assessing officer. Thus, there was no material to support the claim of the appellant that the said amount represented compensation for loss of agricultural income. He accepted the entry in the statement of the account filed by the appellant in the absence of any supporting material and without making any inquiry. On these facts the conclusion that the order of the Income Tax Officer was erroneous is irresistible. We are, therefore, of the opinion that the High Court has rightly held that the exercise of the jurisdiction by the Commissioner under section 263(1) was justified.

He also relied on the decision of Calcutta High Court in Commissioner of Income Tax, Central-I, Kolkata Vs. Maithan International, (2015) 56 Taxmann.com 283 (Calcutta) wherein it has been held as under:-

It is not the law that the assessing officer occupying the position of an investigator and adjudicator can discharge his function by perfunctory or inadequate investigation. Such a course is bound to result in erroneous and prejudicial orders. Where the (7 of 31) [ITA-283/2010]

It is stated that payment made to following parties have not been examined. In this regard we are submitting our explanation for each party as under:

1 However, it is contended that without considering reply, the CIT (A) passed order under Section 263 remanding the matter. He has further taken us to the observation made by the Tribunal which reads as under:- “We have heard rival submission and considered them carefully alongwith various case laws relied upon by Ld. A.R. It is seen that various objection raised by Ld. CIT which have been incorporated in this order some where above, were examined by the A.O. as during the assessment proceeding. The A.O. issued a querry letter dated 28.05.2008. Assessee filed reply by letter dated 12.06.2008.”

He contended that after considering the judgment of the Bombay High Court, the Tribunal has taken a view which is required to be approved.

3 He has relied on the following decisions:-

The CIT, however, in exercise of his power under s. 263 of the Act, issued notice to the respondent- assessee being of the opinion that the assessment of the AO was erroneous and was further prejudicial to the interest of the Revenue. The respondent-assessee entered appearance and submitted its detailed reply to the queries, set out in the show-cause notice. The learned CIT thereafter, by his order dt. 7th Jan., 2010, interfered with the assessment of the AO and directed him (AO) to verify the details/documents, as mentioned therein and to decide the issues and pass a speaking order as per law, after affording an opportunity of hearing. While arriving at this conclusion, the learned CIT, however, held that the (9 of 31) [ITA-283/2010]

Be that as it may, being aggrieved by the above determination, the respondent-assessee preferred an appeal under s. 260A (sic-253) of the Act before the Income-tax Appellate Tribunal, Jaipur Bench 'A', Jaipur (for short, hereafter referred to as 'the Tribunal'), which by its rendering dt. 25th March, 2011, interfered with the above-referred decision of the learned CIT. As the text of this order, impugned in the present appeal, would reveal the learned Tribunal did notice the relevant facts in extenso and observed that-the only dispute was with regard to 1,43,000 shares received in physical form and eventually shown in the demat account of the respondent- assessee. Referring to the documents/records produced before the learned CIT, the learned Tribunal recorded that he (CIT) had not formed any opinion that these shares had not been held by the respondent-assessee for more than one year. The learned Tribunal expressed the view that in the face of the materials before him, the learned CIT could not have formed any opinion that the assessment order was erroneous. It recalled the findings of the AO, as adverted to hereinabove and concluded that the learned CIT not having come to the conclusion that the assessment order was erroneous and no reasons having been recorded to demonstrate that the same was prejudicial to the interest of the Revenue, he was not justified to refer the matter back to the AO and that too, without examining the materials produced before him on merits.

Upon hearing the learned counsel for the parties and on a consideration of the materials on record, we are inclined to sustain the plea taken on behalf of the respondent-assessee. The salient facts bearing on the debate have been outlined hereinabove. To reiterate,

It is no longer res integra that the revisional jurisdiction available to a CIT under s. 263 of the Act, is essentially circumscribed by the determinant that the order of the AO is erroneous so much so that it is prejudicial to the interest of the Revenue. This statutory enjoinment carves out an extremely constricted ambit of such discretionary jurisdiction. The word "considers" applied in the statutory provision involved, signifies a genuine satisfaction of that authority that the order of the AO is erroneous and that the interest of the Revenue is prejudicing thereby. Any exercise of the revisional jurisdiction, bereft of such satisfaction and/or finding that the 60/2012

The settled legal position for limitation on the revisional powers of Commissioner under Section 263 of the Act is that, firstly, they are limited in nature,

Thus having heard the learned counsel for Revenue at length and in view of aforesaid legal position and factual matrix, we are satisfied that the Tribunal was justified in holding that in these facts and upon the stated objections, the Commissioner was in error in D.B. Income Tax Appeal No.60/2012 Commissioner of Income Tax-II, Jodhpur Vs. M/s Jain Construction Co. invoking the revisional jurisdiction under Section 263 of the Act, and thus the findings arrived at by the Tribunal essentially remain findings of fact, which do not give rise any substantial question of law, requiring consideration by this Court. Mere alleged insufficiency of the enquiry in the opinion of the Commissioner by the Assessing Authority, could not permit him to invoke the revisional jurisdiction under Section 263 of the Act and, therefore, the essential twin conditions for invoking the revisional jurisdiction, namely, the impugned assessment being erroneous as well as prejudicial to the interest of Revenue, were not at all satisfied in the present case and, therefore, the Tribunal was perfectly justified in allowing the assessee's appeal and setting aside the order of Ltd. (01.03.2012 - DELHC)

Thus, in cases of wrong opinion or finding on merits, the CIT has to come to the conclusion and himself decide that the order is erroneous, by conducting necessary enquiry, if required and necessary, before the order under Section 263 is passed. In such cases, the order of the Assessing Officer will be erroneous because the order passed is not sustainable in law and the said finding must be recorded. CIT cannot remand the matter to the Assessing Officer to decide whether the findings recorded are erroneous. In cases where there is inadequate enquiry but not lack of enquiry, again the CIT must give and record a finding that the order/inquiry made is erroneous. This can happen if an enquiry and verification is conducted by the CIT and he is able to establish and show the error or mistake made by the Assessing Officer, making the order unsustainable in Law. In some cases possibly though rarely, the CIT can also show and establish that the facts on record or inferences drawn from facts on record per se justified and mandated further enquiry or investigation but the Assessing Officer had erroneously not undertaken the same. However, the said finding must be clear, unambiguous and not debatable. The matter cannot be remitted for a fresh decision to the Assessing Officer to conduct further enquiries without a finding that the order is erroneous. Finding that the order is erroneous is a condition or requirement which must be satisfied for exercise of jurisdiction under Section 263 of the Act. In such matters, to remand the matter/issue to the Assessing Officer would imply and mean the CIT has not examined and decided whether or not the order is erroneous but has directed the Assessing Officer to decide the aspect/question.

Commissioner of Income Tax vs. Sunbeam Auto Ltd. (11.09.2009 – DELHC), 332 ITR 167

We have considered the rival submissions of the counsel on the other side and have gone through the records. The first issue that arises for our consideration is about the exercise of power by the Commissioner of Income Tax under Section 263 of the Income Tax Act. As noted above, the submission of learned Counsel for the Revenue was that while passing the assessment order, the AO did not consider this aspect specifically whether the expenditure in question was revenue or capital expenditure. This argument predicates on the assessment order, which apparently does not give

Thus, even the Commissioner conceded the position that the AO made the inquiries, elicited replies and thereafter passed the assessment order. The grievance of the Commissioner was that the AO should have made further inquiries rather than accepting the explanation. Therefore, it cannot be said that it is a case of 'lack of inquiry'.

Having put the records straight on this aspect, let us proceed further. Is it a case where the Commissioner has concluded that the opinion of the AO was clearly erroneous and not warranted on the facts before him and, viz., the expenditure incurred was not the revenue expenditure but should have been treated as capital expenditure? Obviously not. Even the Commissioner in his order, passed under Section 263 of the Act, is not clear as to whether the expenditure can be treated as capital expenditure or it is revenue in nature. No doubt, in certain cases, it may not be possible to come to a definite finding and therefore, it is not necessary that in all cases the Commissioner is bound to express final view, as held by this Court in Geevee Enterprise [supra]. But, the least that was expected was to record a finding that order sought to be revised was erroneous and prejudicial to the interest of the revenue. [see Sashayee Paper(supra)]. No basis for this is -

Before we undertake the exercise of answering the reference, it is deemed expedient to reiterate the governing principles laid down by Courts with regard to the exercise of power by the Commissioner under (17 of 31) [ITA-283/2010]

It is also trite that there is a fine though subtle distinction between "lack of inquiry" and "inadequate inquiry". It is only in cases of "lack of inquiry" that the Commissioner is empowered to exercise his revisional powers by calling for and examining the records of any proceedings under the Act and passing orders thereon. In Gabriel India Ltd. (supra), it was expressly observed: The Commissioner cannot initiate proceedings with a view to starting fishing and roving enquiries in matters or orders which are already concluded. Such action will be against the well-accepted policy of law that there must be a point of finality in all legal proceedings, that stale issues should not be reactivated beyond a particular stage and that lapse of time must induce repose in and set at rest judicial and quasi-judicial controversies as it must in other spheres of human activity see Parashuram Pottery Works

Applying the aforesaid law to the facts of the present case, we are of the view that the exercise of revisional power by the Commissioner in the instant case was uncalled for and unjustified. It was more in the nature of roving and fishing enquiry. The Commissioner has proceeded on the assumption that no such information, as was furnished to him, was furnished at the time of assessment. The Commissioner has mentioned that the Income Tax officer has not examined the cash credits of the (19 of 31) [ITA-283/2010] (29.05.2015 - ITAT Jaipur)

11 We have heard the rival contentions and perused the materials available on record. We find from the record that the assessee had already filed the return of income despite that she has been wrongly accused of not filing the same; this subjected the assessee to rigor of avoidable 148 proceedings. The record and submissions filed during the course of assessment proceedings did not in any manner indicate that proper enquiries and verification were not conducted. The order of the AO though short yet crisp and clear in arriving at proper findings reflecting reasonable discharge of assessment which cannot be held as erroneous. In our considered view, the case laws cited by the ld. AR in the case of CIT v. Sun Beam Auto Ltd. (Delhi), Malabar Industrial Co. Ltd. v. CIT (SC) and CIT v. Max India Ltd. (supra) support assessee's contentions. We are of view that 263 proceedings cannot be invoked where reasonable inquiries are conducted with application of mind; there is conspicuous difference between the cases of lack of enquiry and perception about the level of enquiry. In this case it emerges that ld. CIT carried a different perception about the manner of enquiry which ought to have been conducted by the AO; however it is not 'sufficient to hold the assessment order as erroneous and thereby prejudicial to the interest of revenue. The plethora of case laws cited by the assessee do not support such type of exercise of power u/s. 263 of the Act. Hence 263 order holding the AO's order as erroneous cannot be sustained merely because the ld. CIT holds different plausible view about manner of inquiry. Consequently, we are unable to uphold the impugned order u/s. 263 of the Act passed by the ld. CIT which is quashed. Thus the appeal of the assessee is allowed. The Tribunal has held that the case under section 263 of the Act is not made out and we are in complete agreement with the view taken by the Tribunal. Power of section 263 cannot be exercised for want of enquiry in a particular manner.

Commissioner of Income Tax vs. Fine Jewellery (India) Ltd. (03.02.2015 - BOMHC)

We find that the impugned order of the Tribunal does record the fact that specific queries were made during the assessment proceedings with regard to details of expenditure claimed under the head "miscellaneous expenses" aggregating to Rs. 2.94 crores. The respondent-assessee had responded to the same and on consideration of response of the respondent-assessee, the Assessing Officer held that of an amount of Rs. 17.98 lakhs incurred on account of repairs and maintenance out of Rs. 2.94 crores is capital expenditure. This itself would be indication of application of mind by the Assessing Officer while passing the impugned order. The fact that the assessment order itself does not contain any discussion with regard to the balance amount of expenditure of Rs. 1.76 crores, i.e., Rs. 2.94 crores less Rs. 17.98 lakhs claimed as revenue expenditure would not by itself indicate non-application of mind to this issue by the Assessing Officer in view of the specific queries made during the assessment proceedings and the respondent-assessee's response to it. In fact this court in the case of Idea Cellular Ltd.

Revisional power conferred on the CIT under s. 263 of the Act is wide, it enables the CIT to call for and examine the record of the case or pass any order under the Act and also empowers him to make or cause to be made such an inquiry as he deems fit and necessary in order to find out, if the order passed by the AO is erroneous insofar as it is prejudicial to the interest of Revenue, however, he has to have certain material to come to the conclusion. Once, he comes to the above conclusion that there is material, the CIT is empowered to pass an order as per the circumstances of the case which may warrant as he is empowered to take recourse to any of the three courses indicated in s. 263 only. Therefore, it is clear that CIT does not have un- fettered and unchequered discretion/power to revise

We are also of the view that the CIT in the subsequent order passed under s. 263 held that the assessment order was without jurisdiction and is not valid order and in our view, original order passed under s. 143(3) and 263 cannot be rectified either under s. 154 or under s. 263 of the Act through the revisional power conferred on the CIT under s. 263. 17. As discussed hereinabove, the AO had the jurisdiction when the notice under s. 143(2) was issued and once the ITO had valid jurisdiction at the time of issuance of notice, then the AO ought to have informed the assessee if there was some internal circular. The CIT later on was of the view that the ITO had no jurisdiction and in our view, it cannot be said to be proper as the assessee appeared on valid notice and after considering all the submissions or representation, the ITO passed an order. It is not a case where the ITO passed order in a cryptic or summary manner accepting the returned income and we notice that the assessment order is running into 12 pages and after elaborate discussion on most of the issues, the income was computed/assessed at Rs. 6,81,500. As pointed out here above, twin conditions have to be satisfied and the order cannot be termed to be erroneous only because the CIT does not feel satisfied with the conclusion. We have already referred to the fact that one CIT also issued notice under s. 263 for the same assessment year between the same parties and he having been satisfied dropped the proceedings and it is only thereafter that another CIT came to the conclusion about jurisdiction while the earlier CIT was also aware of this factum

It has to be kept in mind that while exercising power under Section 263 of the Act, the Commissioner has to be satisfied that the order is prejudicial to the interest of the revenue and there are materials available on record which require the Commissioner to satisfy him in a prima facie manner that the order is not only prejudicial to the interest of the revenue but also erroneous in nature. In the absence of any of the factors being satisfied, he does not assume jurisdiction to initiate a suo motu power of revision. The exercise of such a power is dependent on the conditions precedent being satisfied. The Commissioner does not have unfettered power to initiate proceeding by revision, re- examining the matter and directing fresh on his own whim for change or having a different view. He has been conferred with a quasi-judicial power and the same is hedged with limitation and, therefore, it has to be exercised within the parameters of the provision. When the Commissioner is himself not able to form an opinion, he cannot direct another inquiry by the Assessing Officer under Section 263 of the Act. In this regard, we may profitably reproduce a passage from Associated Food Products (P.) Ltd's case (supra):

In view of the aforesaid pronouncement of law and taking into consideration the language employed under Section 263 of the Act, it is clear as crystal that before exercise of powers two requisites are imperative to be present. In the absence of such foundation exercise of a suo motu power is impermissible. It should not be presumed that initiation of power under suo motu revision is merely an administrative act. It is an act of a quasi-judicial authority and based on formation of an opinion with regard to existence of adequate material to satisfy that the decision taken by the Assessing Officer is erroneous as well as prejudicial to the interests of the Revenue. The concept of "prejudicial to the interests

The second aspect that is required to be adverted is whether the Commissioner without recording a specific finding with regard to the fact that the order passed by the Assessing Officer was prejudicial to the interest of the revenue could have passed an order under Section 263 of the Act, or as Mr. Vohra, learned Counsel for the Assessee would put it that the Commissioner had travelled beyond what was stated in the notice. The hub of the matter is whether the manner in which the Commissioner has proceeded to exercise the jurisdiction under Section 263 of the Act is sustainable or not. As is discernible from the order, he has asked the Assessing Officer to conduct an inquiry to verify the net commission transferred to P&L account afresh. The Commissioner has remained totally oblivious of the fact that the Assessing Officer had already examined this aspect but the Commissioner had thought to direct a re- inquiry for merely a change of opinion which is impermissible under Section 263 of the Act. In this context, we may refer to the decision in Gabriel India Ltd.'s case (supra) wherein the Commissioner, after scrutiny of the order of the Income Tax Officer, found that the order did not disclose application of mind and despite examining the matter at length and hearing the Assessee could not come to a definite

The Tribunal after examining the facts of the case observed that although it is not discernible from the assessment order whether the assessing officer had applied his mind or not, but it was the prerogative of (25 of 31) [ITA-283/2010]

In view of the above discussion, it is apparent that the Tribunal arrived at a conclusive finding that, though the assessment order does not patently indicate that the issue in question had been considered by the assessing officer, the record showed that the assessing officer had applied his mind. Once such application of mind is discernible from the record, the proceedings under Section 263 would fall into the area of the CIT having a different opinion. We are of the view that the findings of facts arrived at by the Tribunal do not warrant interference of this Court. That being the position, the present case would not be one of "lack of inquiry" and, even if the inquiry was termed as inadequate, following the decision in Sunbeam Auto Ltd. (supra), "that would not by itself give occasion to the CIT to pass orders under Section 263 of the said Act, merely because he has a different opinion in the matter." No substantial question of law arises for our consideration. Consequently, the appeal is dismissed.

DIT vs. Jyoti Foundation (09.07.2013 - DELHC) : MANU/DE/1918/2013

Revisionary power under Section 263 of the Act is conferred by the Act on the Commissioner/Director of (26 of 31) [ITA-283/2010]

The Assessing Officer is both an investigator and an adjudicator. If the Assessing Officer as an adjudicator decides a question or aspect and makes a wrong assessment which is unsustainable in law, it can be corrected by the Commissioner in exercise of revisionary power. As an investigator, it is incumbent upon the Assessing Officer to investigate the facts required to be examined and verified to compute the taxable income. If the Assessing Officer fails to conduct the said investigation, he commits an error and the word 'erroneous' includes failure to make the enquiry. In such cases, the order becomes erroneous because enquiry or verification has not been made and not because a wrong order has been passed on merits.

Delhi High Court in Gee Vee Enterprises vs. Additional Commission of Income-Tax, Delhi-I & Ors., MANU/DE/0176/1974MANU/DE/0176/1974 : (1975) 99 ITR 375, has observed as under:- The reason is obvious. The position and function of the Income-tax Officer is very different from that of a civil court. The statements made in a pleading proved by the minimum amount of evidence may be accepted by a civil court in the absence of any rebuttal. The civil court is neutral. It simply gives decision on the basis of the pleading and evidence which comes before it. The Income-tax Officer is not only an adjudicator but also an investigator. He cannot remain passive in the face of a return which is apparently in order but calls for further inquiry. It is his duty to ascertain the truth of the facts stated in the return when the circumstances of the case are such as to provoke an inquiry. The meaning to be given to the word "erroneous" in section 263 emerges out of this context. It is because it is incumbent on the Income-tax Officer to further investigate the facts stated in the return when

The aforesaid observations have to be understood in the factual background and matrix involved in the said two cases before the Supreme Court. In the said cases, the Assessing Officer had not conducted any enquiry or examined evidence whatsoever. There was total absence of enquiry or verification. These cases have to be distinguished from other cases (i) where there is enquiry but the findings are incorrect/erroneous; and (ii) where there is failure to MANU/DE/2519/2009MANU/DE/2519/2009 : (2011) 332 ITR 167 (Del), Delhi High Court was considering the aspect, when there is no proper or full verification, and it was held as under:- We have considered the rival submissions of the counsel on the other side and have gone through the records. The first issue that arises for our consideration is about the exercise of power by the Commissioner of Income-tax under section 263 of the Income-tax Act. As noted above, the submission of learned counsel for the Revenue was that while passing the assessment order, the Assessing Officer

In the present case, inquiries were certainly conducted by the Assessing Officer. It is not a case of no inquiry. The order under Section 263 itself records that the Director felt that the inquiries were not sufficient and further inquiries or details should have been called. However, in such cases, as observed in the case of DG Housing Projects Limited (supra), the inquiry should have been conducted by the Commissioner or Director himself to record the finding that the assessment order was erroneous. He should not have set aside the order and directed the Assessing Officer to conduct the said inquiry. In view of the aforesaid legal position, we do not think any substantial question of law arises for consideration."

4 He also contended that in view of provisions of Section 129 contention which has been raised by counsel for the appellant that CIT(A) has omnibus power, he has to give special reasons and more particularly in view of first decision on which he placed reliance.

We have heard learned counsel for the parties.

1 Before proceeding with the matter, we may record that in view of order passed by AO and CIT(A) and taking into account the powers which are conferred under Section 263, in view of the law discussed hereinabove, we are of the considered opinion that when the assessee has filed reply dated 31.08.2009 and when he has specifically contended that in the assessment proceedings, he has filed different reply than what has been referred by the assessee in its reply before the CIT (A) on different dates which has not been considered by the CIT(A), even the explanations which are given of all the six grounds are not considered, therefore, rejection of contention of the assessee and then without

When no other material was placed before CIT (A), requires serious consideration by the Chief Commissioner of Income Tax. The appropriate proceedings, if he is in service or retired, be taken to put his house in order.

The issue is answered in favour of the assessee against the department. The appeals stand dismissed. (INDERJEET SINGH),J. (K.S. JHAVERI),J. //bm gandhi 73-74