TaxTMI 
TaxTMI 
2015 (2) TMI 170
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....cting the contention of the assessee that the assessments were ab initio void for failure to serve notice u/s.143(2) being statutory and mandatory notice which required to be served in assessment under Ss.153-A and 153-C of the Act. The reliance placed on the Judgment of the Hon'ble Delhi High Court in Ashok Chadha Vs. CIT Delhi is distinguishable on facts and law. The assessments being illegal and without jurisdiction be quashed holding that the action under section 263 is bad in law and it be quashed. 2. On the facts and circumstances of the case and in law Ld. CIT (Central) in her fresh order under section 263 simply followed what her predecessor CIT (Central) had held to come to the conclusion that the assessment orders of the A.O. were erroneous as well as prejudicial to the interests of revenue to initiate action under section 263 of the Act. The Ld. CIT (Central) failed to consider the requisite grounds specifically raised before her in connection with applicability of S. 263 of the Act. Except making a statement that various judicial pronouncements cited by assessee in support of the contentions were distin....
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....ssessment proceedings, had disallowed the car expenses in various percentages. The case of the assessee was referred to the special auditor who had submitted its Audit Report. The Commissioner observed that the break-up in terms of fuel and maintenance was not taken by the Assessing Officer. Further, the said cars were utilized by various functionaries of the Trust and the same was part of the Audit Report of the special Auditor. The Commissioner under para 2.1 has tabulated the car expenses claimed by the assessee and the car expenses disallowed by the Assessing Officer from year to year. The Commissioner in the first round of proceedings under section 263 of the Act observed that the Assessing Officer had disallowed the expenses at a given percentage, which was varying year after year. Since the Assessing Officer had not mentioned the reasons for adopting different percentages of the disallowance for different years, the Commissioner was of the view that the said disallowance was in thin air and without any basis. The Commissioner acknowledged that though the order of Assessing Officer had resulted into heavy disallowances, yet the same were without any basis and were going....
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.... or not. Where the cars were being used by the Trustees, the other issues were whether the perquisites value has to be determined and added in the hands of the functionaries and whether the tax has been deducted at source or not. The Commissioner observed that the Assessing Officer had not enquired into the expenditure on each car and the Auditor had also not given the same and hence the order was prejudicial to the interest of Revenue. 6. Another point noted by the Commissioner was that prior to search at the residence of the Trustees, the assessee was not filing the return of income. For the first time, the return of income was filed for assessment year 1999-2000. Since no depreciation had been allowed earlier, therefore, the opening cost of the asset had to be taken for the purpose of written down value, in view of the provisions of section 43(6) of the Act. The Commissioner in this regard, observed that the Assessing Officer had simply dismissed the claim and had allowed depreciation as worked out by the Auditor. The Commissioner observed that the Assessing Officer was not right in simply brushing aside the stand of assessee on the ground that she was going to allow deprecia....
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....3 of the Act has reproduced finding of Commissioner in the earlier order passed under section 263 of the Act in respect of unsecured loans. The Assessing Officer had made addition on account of loans in assessment years 2000-01, 2001-02, 2003-04, 2004-05 and 2005-06. The said addition had made as enlisted at pages 11 and 12 of the order passed under section 263 of the Act. However, no disallowance was made by the Assessing Officer in respect of other credits in other names i.e. Jyotsna Ajit Gundesha of Rs. 1,00,000/- and Shantilal Bhimraj Gundesha of Rs. 50,000/- though the same fell in the same category. Another entry was made in assessment year 2005-06 of Rs. 40 lakhs in the name of Dr. D.Y. Patil Academy. The said Auditor had explained that interest had been paid only with regard to the loans of Gundeshah family and that too @ 4%. As per Commissioner, the rate itself indicates that the loans were bogus and all other loans taken by the assessee year after year were noninterest bearing loans as explained to him by the Auditor in writing. The Commissioner questioned why anybody would give interest free loans. The Commissioner at page 13 under para 5.2 has tabulated the credit of....
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....nly part of the loans and accepted the balance loan, where the loans were interest free. In the absence of the assessee having failed to prove the identity of the person, his capacity to pay taxes and the genuineness of the transaction, the Commissioner at para 5.6 at page 17 has tabulated resulting position in the form of chart submitted, under which loans of D.Y. Patil Pratishthan were also considered. The Commissioner questioned as to why the Assessing Officer had accepted the loans as genuine. The said Auditor reported that only in few cases interest has been paid on the loan account, but the Assessing Officer had only disallowed the loans, but had not disallowed the interest on the said loans. Such expenditure or non-expenditure of loans and disallowance of interest in a particular manner, as per the Commissioner, could only be described as prejudicial to the interest of Revenue. 10. Another aspect noted by the Commissioner was that the assessee claimed that it had given registration under section 12A of the Act and so was entitled to all the benefits of sections 11 and 12 of the Act, whereas, the stand of the Department was that the assessee never applied for registration ....
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....hat the adhoc manner in which the disallowance had been made and the whole issue had been dealt with was clearly prejudicial to the interest of Revenue. Accordingly, show cause notice was issued to the assessee in this regard. 12. The Commissioner in the set-aside proceedings under section 263 of the Act observed that the assessment orders were erroneous and prejudicial to the interest of Revenue on account of following reasons:- (i) Failure to make necessary enquiries; (ii) Completing the assessment proceedings without proper appreciation of evidences, facts and law; (ii) Not making disallowances / additions which ought to have been made. 13. In reply, the assessee furnished submissions vide letter dated 08.02.2011, which as per Commissioner, were lengthy. However, gist of the contentions raised by the assessee in the letter was as under:- "(a) The assessments u/s 153A rws 153C of the Act are without jurisdiction, illegal and are not sustainable and, he....
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....mpleted under section 153C of the Act by utilizing the report of special auditor and not merely depending on the views expressed by the special auditors. 16. Another objection raised by the assessee was that notice under section 143(2) of the Act had not been served and hence, the proceedings are void. The Commissioner was of the view that even if notice under section 143(2) of the Act was not served, the assessment under section 153A / 153C of the Act were still be valid as no mention has been made in the present procedure of search proceedings to issue notice under section 143(2) of the Act, unlike in the block assessment procedure prescribed under Chapter XIV-B of the Act. 17. The next issue raised by the assessee was that time limit within which the assessments should have been completed vis-à-vis report received from the special auditor under section 142(2A) of the Act. The Commissioner held that the special auditor submitted its audit report on 09.06.2008 and the assessment order was passed on 07.08.2008 which was within 60 days of the receipt of audit report and the contention of the assessee, in this regard was without substance. 18. The last contention of t....
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....e is in appeal against the order of Commissioner passed under section 263 of the Act. 22. The learned Authorized Representative for the assessee pointed out that the Commissioner opined that enquiries were not conducted, sometimes, he shows that inadequate enquiries were conducted. In respect of section 12A registration of the assessee Trust, it was pointed out by the learned Authorized Representative for the assessee that though the registration was there, but since the same could not be produced, in all years, assessment was completed in normal course. He further submitted that enquiries were conducted on 17.06.2008 and replies were filed on 30.06.2008 and it could not be said that the Assessing Officer has not applied his mind. Our attention was drawn to the assessment orders passed for captioned years placed at pages 1 to 75 of the Paper Book and the order of CIT(A) dismissing the appeals as infructuous, which is placed at pages 176 and 177 of the Paper Book. The learned Authorized Representative for the assessee further submitted that in the meanwhile the order under section 263 of the Act was passed which was set-aside by the Tribunal and fresh order under section 263 o....
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....rawn to the para 7.5.1 and 7.5.3 of the Commissioner, with regard to the depreciation on assets. With reference to para 3.3 at page 9 of the order of Commissioner, the learned Departmental Representative for the Revenue, pointed out that the additions on car expenses were made on adhoc basis. With regard to the depreciation on hospital building referred to in para 4.1 at page 10, the learned Departmental Representative for the Revenue pointed out that there were un-vouched expenses and the Assessing Officer had overlooked the same and adopted the valuation report of the DVO. 24. The next issue raised by the learned Departmental Representative for the Revenue was the unsecured loans raised by the assessee referred to in para 5.1 by the Commissioner, where there was no variation in the cash book. It was admitted by the learned Departmental Representative for the Revenue that though the Assessing Officer had disallowed some of loans, but had not considered the balance loans and had also not considered the disallowance of interest on such loans, which were disallowed by the Assessing Officer. Our attention was further drawn to the para 6.2 to 6.7 of the order of Commissioner. Furthe....
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....order passed by the Commissioner was incorrect. Further, it was pointed out by the learned Authorized Representative for the assessee that the Assessing Officer had already disallowed the expenses which were un-vouched. In conclusion, the learned Authorized Representative for the assessee pointed out that the order passed by the Commissioner in the present facts and circumstances, was not valid. The learned Authorized Representative for the assessee further stated that the grounds of appeal Nos.1 and 4 were not pressed and the issue is to be addressed in view of grounds of appeal Nos.2, 3 and 5 raised in the concise grounds of appeal. 27. We have heard the rival contentions and perused the record. The assessee has not pressed the grounds of appeal Nos.1 and 4 and the same are dismissed as not pressed. Further, the assessee vide grounds of appeal No.2, 3 and 5 has raised the issue of exercise of jurisdiction by the Commissioner under section 263 of the Act in holding the assessment orders passed by the Assessing Officer to be erroneous and prejudicial to the interest of Revenue. 28. Under section 263 of the Act, the Commissioner can invoke his jurisdiction where the assessment....
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.... to the Revenue. If due to an erroneous order of the Income-tax Officer, the Revenue is losing tax lawfully payable by a person, it will certainly be prejudicial to the interests of the Revenue". The phrase "prejudicial to the interests of the Revenue" has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue. For example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of Revenue; or where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income-tax Officer is unsustainable in law. " 29. Under the provisions of section 263 of the Act, the term erroneous means a wrong / incorrect decision deviating from the law. This expression also postulates an error which makes an order unsustainable in law. The expression prejudicial to the interest of Revenue is of wide import and is not conf....
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.... because enquiry or verification has not been made and not because a wrong order has been passed on merits." 32. The Hon'ble Bombay High Court in CIT Vs. Gabriel India Ltd. (1993) 203 ITR 108 (Bom) had held as under:- "... From a rending of sub-section (1) of section 263, it is clear that the power of suo motu revision can be exercised by the Commissioner only if, on examination of the records of any proceedings under this Act, he considers that any order passed therein by the Income-tax Officer is "erroneous in so far as it is prejudicial to the interests of the Revenue" . It is not an arbitrary or unchartered power, it can be exercised only on fulfillment of the requirements laid down in sub-section (1). The consideration of the Commissioner as to whether an order is erroneous in so far as it is prejudicial to the interests of the Revenue, must be based on materials on the record of the proceedings called for by him. If there are no materials on record on the basis of which it can be said that the Commissioner acting in a reasonable manner could have come to such a conclusion, the very initiation of proce....
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....awfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation a lesser tax than what was just has been imposed . . " 34. The Hon'ble Delhi High Court in ITO Vs. DG Housing Projects Ltd. (supra) further while elaborating on the powers of the Commissioner, observed as under:- "16. 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 establ....
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....the time when the order in question was passed by the Assessing Officer but also the record as it stands at the time of examination by the CIT [see CIT vs. Shree Manjunathesware Packing Products, 231 ITR 53 (SC)]. Nothing bars/prohibits the CIT from collecting and relying upon new/additional material/evidence to show and state that the order of the Assessing Officer is erroneous. 18....... "19. In the present case, the findings recorded by the Tribunal are correct as the CIT has not gone into and has not given any reason for observing that the order passed by the Assessing Officer was erroneous. The finding recorded by the CIT is that "order passed by the Assessing Officer may be erroneous". The CIT had doubts about the valuation and sale consideration received but the CIT should have examined the said aspect himself and given a finding that the order passed by the Assessing Officer was erroneous. He came to the conclusion and finding that the Assessing Officer had examined the said aspect and accepted the respondent's computation figures but he had reservations. ....
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....ence, invalid. The erroneous assessment pertains to a defect, which is jurisdictional in nature. It does not refer to the judgment of the AO in fixing the amount or valuation of property. "Erroneous judgment" means one rendered according to course and practice of Court; but contrary to law, upon a mistaken view of law or upon an erroneous application of legal principles. An order cannot be termed erroneous unless it can be shown to be an order, which is not in accordance with law. If the ITO, acting in accordance with law, makes certain assessment, the same cannot be termed as erroneous by the CIT merely because, the order, according to the CIT, should have been more elaborate in writing. Sec. 263 does not visualise a case of substitution of the judgment of the CIT for that of the ITO, who makes the assessment, unless the decision of the ITO is held to be an erroneous one. It is an established position of law that the CIT, on perusal of the records, may be of the opinion that the estimate made by the officer concerned was on the lower side and if it was done by the CIT himself, then he would have estimated the income at a figure higher than the one determined by the ITO; but such o....
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....flects that enquiries have been made by the Assessing Officer and a particular conclusion was reached by the Assessing Officer, with reference to such enquiries made during the course of assessment and if the same is apparent from the perusal of the record of proceedings, then the invocation of jurisdiction by the Commissioner under such circumstances under section 263 of the Act is not sustainable. In any case as held by the Hon'ble Delhi High Court in ITO Vs. DG Housing Projects Ltd. (supra) in cases where there is an inadequate enquiry but not lack of enquiry, then the Commissioner must record a finding that the order / enquiry made by the Assessing Officer was erroneous, which can only happen if an enquiry and verification is conducted by the Commissioner and he is able to establish and show the error or mistake made by the Assessing Officer. The finding of the Commissioner must be clear, un-ambiguous and not debatable. The matter cannot be set-aside to the file of Assessing Officer to make further enquiries without a finding as to the order being erroneous. It has been held by the Hon'ble Bombay High Court in CIT Vs. Gabriel India Ltd. (supra) that exercise of jurisdiction und....
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.... assessee. The Assessing Officer in view of the complexity of accounts of the assessee and in the interest of Revenue, made a proposal for carrying out a special audit under section 142(2A) of the Act. The CIT, Central, vide order passed on 21.11.2007 approved the above proposal. Accordingly, the auditor was nominated on 06.12.2007 and the assessee was directed to get its accounts audited. The audit report was submitted on 09.06.2008 and thereafter, a detailed questionnaire was issued to the assessee along with the issues mentioned in the audit report. In response to which, the assessee appeared and submitted the information called for. In between, the assessee was also served with a letter dated 30.07.2007 as to why its income should not be assessed by not applying the provisions of sections 11 to 13 of the Act and treating the assessee as AOP. The Assessing Officer on consideration of the submissions filed by the assessee on 11.10.2007 observed that the assessee had not fulfilled the conditions laid down under section 12A of the Act as it had no registration under section 12AA of the Act. Further, the assessee had not filed any regular returns of income and for the first time, th....
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.... Assessing Officer. The next aspect noted by the Assessing Officer was the expenses on car, its repairs and maintenance. The Assessing Officer had noted that the assessee had incurred expenses on Hyundai Accent, Mercedes Benz and Toyota Safari cars repairs and maintenance and the said expenses were debited to Profit & Loss Account. The Assessing Officer also noted that during assessment year 2000-01, the assessee had purchased Honda Accent car. The assessee vide letter dated 17.06.2008 was requisitioned to justify that the expenses incurred on the car were incurred for the objects of the Trust. In reply, the assessee submitted that the vehicles were provided to various officials viz. VC, Dean, Medical Superintendent, Directors, Principals and Trustees, etc. who were managing day-to-day affairs of the Trust and various institutions. It was also due to their efforts along with hard work of the President and other Trustees that the Trust and its institutions had received recognition and gained the fame in the world of education. The assessee further stated that the vehicles provided to them were for achieving the objects of the Trust and the facilities were provided as per their profe....
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....urchased in assessment year 2004- 05, Camary in assessment year 2005-06, Innova, Maruti Zen, in assessment year 2005-06. In the assessment year relating to assessment year 2001-02, the Assessing Officer at page 15 had dealt with the expenses on car, its repairs and maintenance. During the assessment year 2001-02, the assessee had purchased one Mercedes car and one Toyata Safari car and the assessee was asked to justify the expenditure on the said cars and other cars including their repairs and maintenance. Since the assessee had not maintained car-wise maintenance expenses, the assessee was show caused as to why 40% of the expenditure incurred on maintenance of cars should not be disallowed. Further, the assessee had failed to furnish the facts relating to utilization of Hyundai Ascent car, Mercedes Benz and Toyata Safari and accordingly, it was held that the said cars were used for the personal purposes of the Trustees and not for the purposes of Trust and the depreciation on the said cars and interest paid to the bank on car loans amounting to Rs. 4,33,290/- and Rs. 2,61,957/- was disallowed. 40. The Assessing Officer thereafter, considered the next issue i.e. the claim of dep....
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....the Trustees. Reference was made to the District Valuation Officer for the valuation of hospital building. As per the Valuation Report submitted by the DVO, the total cost of construction of the hospital building was Rs. 18,89,51,000/- as against the value shown by the assessee at Rs. 21,29,48,028/-. The Assessing Officer observed that the building was valued at lesser value by the DVO than the value disclosed by the assessee, which leads to the conclusion that the expenses for Trustees residence were also debited in hospital building expenses. Accordingly, the Assessing Officer was of the view that the assessee was not entitled to the depreciation on the amount which was spent on the residential premises of the Trustees. The assessee was asked to explain the difference in the value and also to explain as to why depreciation on total value should be allowed to the assessee. In reply, the assessee submitted that certain expenses like site development, land leveling, etc. were not considered by the Valuer, which in fact, was debited to the building account by the assessee. The reply of the assessee is reproduced at pages 20 to 25 of the Paper Book, in which it was explained by the as....
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.... 06.10.2008 on various issues, which as per him, were not considered by the Assessing Officer properly resulting in prejudice to the interest of Revenue. The Commissioner had considered various aspects of objections raised by the assessee regarding the procedure for assessment and the notice issued under section 142(2A) of the Act, which are not pressed by the assessee, and hence not deliberated upon by us. 44. The only issue for adjudication is the observation of Commissioner in paras 7.5.1 to 7.5.3. First observation made by the Commissioner was that the Commissioner can record the order as erroneous on the ground in the circumstances of the case, the Assessing Officer should have been made further enquiries before accepting the submissions made by the assessee in his return. The Commissioner thereafter, made reference to the ratio laid down by the Hon'ble Supreme Court in Malabar Industrial Co. Ltd. Vs. CIT (supra) and observed that the assessments for assessment years 2000-01 to 2006-07 were erroneous and prejudicial to the interest of Revenue for not making the proper enquiries. On the perusal of the earlier part of the order passed under section 263 of the Act, where refer....
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.... paid on car loans, where the said cars were utilized for the personal purposes. In this regard, we find no merit in the observations of Commissioner that the Assessing Officer had failed to make enquiries and failed to look into the issue of personal usage. Another aspect of this issue is car placed at disposal of Medical director at Mumbai. The Commissioner had observed that the institution of the Trust was at Kolhapur and the assessee had no branches or offices in operation other than that. However, the Assessing Officer has referred that the assessee was running various institutions at different places and had allowed the expenditure relating to car placed at the disposal of Medical director at Mumbai. The said aspect has been considered by the Assessing Officer and once the Assessing Officer has taken a decision on the issue merely because the Commissioner had contrary view on the said issue, does not make the order passed by the Assessing Officer erroneous and the Commissioner was not justified in invoking the provisions of section 263 of the Act. In the absence of details being maintained and furnished by the assessee vis-à-vis each car, the Assessing Officer had no o....
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....the Assessing Officer, does not empower the Commissioner to re-examine the accounts and re-determine the estimation in the hands of the assessee, where the Assessing Officer during assessment proceedings had made estimated disallowance. Section 263 of the Act does not confer such powers on the Commissioner in exercise of the jurisdiction conferred under section 263 of the Act. In such circumstances, the order passed by the subordinate authorities in accordance with the law, could not be termed as erroneous, merely because the Commissioner is not satisfied with the conclusion reached by the Assessing Officer. In view thereof, we find no merit in the exercise of powers by Commissioner under section 263 of the Act in respect of disallowance on account of car expenses. 47. The next aspect of the order passed under section 263 of the Act is vis-à-vis the claim of depreciation on assets. The Commissioner had held the order of Assessing Officer to be erroneous and prejudicial to the interest of Revenue because of the allowance of depreciation. However, the perusal of the assessment order reflects that the Assessing Officer has not allowed the claim of depreciation to the assesse....
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....ind no merit in the observation of Assessing Officer in holding the same to be prejudicial to the interest of Revenue. The Commissioner in conclusion in para 7.5.3 had held that in the facts of the present case, the assessments for assessment years 2000-01 to 2006-07 were erroneous and prejudicial to the interest of the Revenue and reference was made to the detailed reasons discussed in the original order passed under section 263 of the Act, dated 06.10.2008. However, in the said order passed under section 263 of the Act, which was basis for passing the present order under section 263 of the Act, there was no finding of the Commissioner that the order of Assessing Officer is erroneous. On this account also, the order of Commissioner fails. 50. The next issue considered by the Commissioner was vis-à-vis unsecured loans raised by the assessee. The special auditor in the audit report had identified the said loans. The Assessing Officer during the course of assessment proceedings had asked the assessee to establish the genuineness of the transaction and also to prove the credit worthiness of the loan creditors. However, the assessee failed to do the needful and in the absence....
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....under sections 11 and 12 of the Act. The income had to be computed by applying the normal provisions of the Income Tax Act and in the status of AOP. Once the Assessing Officer had given a finding to the said extent that the deductions under sections 11 and 12 of the Act were not to be allowed to the assessee, then there was no merit in the reference made by the Commissioner to the report of special auditor that the Trustees were running the Trust like a proprietary concern. We further find no merit in the observations of Commissioner in para 6.1 that the Assessing Officer should have marshaled the facts as thrown up by the special auditor to show that the Trust has been freely violating the provisions of section 13 of the Act year after year. Once the Assessing Officer had come to a finding that the assessee was not entitled to the exemptions under sections 11 and 12 of the Act as it had no registration under section 12A of the Act, the violation of provisions of section 13 of the Act becomes immaterial as the said provisions of the Act are not applicable while computing income in normal course of business. Accordingly, we find no merit in the observations of the Commissioner in ho....
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....3 of the Act. Where the Commissioner has to come to a finding that the order is erroneous and prejudicial to the interest of Revenue such exercise of jurisdiction by Commissioner under section 263 of the Act, is not sustainable. It is paramount that the Commissioner must hold and record reasons as to why the order of assessment passed by the Assessing Officer was erroneous. Where the Commissioner has failed to record reasons for holding the order to be erroneous, then the exercise of such powers by the Commissioner are un-sustainable in law. 55. Now, we shall consider the various case laws relied upon by the Revenue. The learned Departmental Representative for the Revenue placed reliance on the ratio laid down by the Hon'ble Supreme Court in Rampyari Devi Saraogi Vs. CIT (supra). The ratio laid down in the said decision was on its own facts and cannot be applied universally to uphold the order of Revision passed by the Commissioner under section 263 of the Act in all cases. We find no merit in the said reliance placed upon by the learned Departmental Representative for the Revenue. 56. The learned Departmental Representative for the Revenue further placed reliance on the rati....
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....tive for the Revenue was on the decision of full Bench of the Hon'ble Guwahati High Court in CIT Vs. Jawahar Bhattacharjee (supra), wherein the assessment order was held to be erroneous where the Assessing Officer had failed to hold any enquiries and had not applied his mind to the relevant material. The Assessing Officer in the present case before us had after verifying the return of income and the complexity of accounts of the assessee referred the matter for special audit under section 142(2A) of the Act and after audit report furnished by the Special Auditor, the issues were elaborately considered by the Assessing Officer and suitable disallowances were made. Merely because the Commissioner was of the view that the disallowances made by the Assessing Officer were not sufficient without coming to any finding, does not warrant the exercise of power under section 263 of the Act. Consequently, we find no merit in the said reliance placed upon by the learned Departmental Representative for the Revenue as the facts of the present case are at variance. 59. Another reliance placed by the learned Departmental Representative for the Revenue on the decision of Hon'ble Delhi High Court ....