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TMI Blog1982 (6) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... aside that same u/s 263 of the Act." 2. At the time of hearing, the ld. counsel for the assessee Mr. D.S. Gupta at the very outset sought our permission to withdraw ground No.1 and the same as such is dismissed. 3. All the surviving grounds being ground Nos. 2 to 5 are in respect of the action of the CIT setting aside the order of the ITO finding the same to be erroneous in so far as it was prejudicial to the interest of the revenue, according to him. Ground No. 6 is of general nature and shall be treated as disposed of with out findings in r/o other ground of appeal. Before we come to the dispute raised by the assessee, it will be proper to narrate certain facts which are relevant for the issue. The assessee owned certain agricultural land measuring 25 bighas 8 biswas in village Dhuri of Tehsil Malerkotla, district Sangrur, which she acquired by way of gift from her father S. Hardial Singh Guram as long as in 1952. On 29th March, 1978, she executed a lease in favour of a group of persons in specified shares, namely, her father S. Hardial Singh Guram, HUF of her father and her minor daughter Taranjot Kaur. The lease was for a period of 88 years on an yearly rent of Rs. 1,000. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee and even if such income was nominal and represented only the produce utilised by the assessee for household purposes, it was fit case for s. 263 proceedings, according to the CIT and he held that the assessment order for the year under consideration is erroneous in so far as it is prejudicial to the interest of the revenue. 5. It is this action of the CIT which is under dispute. The ld. counsel for the assessee first of all highlighted the fact that show cause notice placed on the assessee's compilation at pages 4 and 5 indicates a different cause whereas the order of the CIT u/s 263, when perused, shows that it is for different reasons that the ITO's order is set aside. He not only read the show cause notice and the assessee reply in detail but also the commissioners order at length. He submitted that the said order is not erroneous nor prejudicial of the interest of the revenue. He placed the reliance on the case of Rampyari Khemka vs. CIT (1966) 61 ITR 600 (cal) in respect of the proposition that the CIT could give different reasons or cause in show cause notice and different reasons in his order. He submitted, in the alternative, that the said income of Rs. 80,000 minu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring, the ld Deptl. rep submitted that in respect of the last word 'accepted' the word used by the ITO is 'filed' but, to our mind, even if the deed has been filed, the facts that the assessment has been framed u/s 143(3) and in response to s. 143(2) notice, Sh. M.L. Ahuja, representative of the assessee, attended the proceedings, with whom the case was discussed and it was after the said discussion that the return of the said income was accepted, are facts which would not warrant any subsequent action u/s 263. When we peruse the lease deed, a copy of which is placed at pages 1 to 3 of the assessee's compilation, we find in the preamble "and whereas the lessor has been in exclusive and undisputed possession of the said agricultural land and has been getting it cultivated for her own benefit for the last many years." Besides the above observation, undoubtedly the said lease deed observed in cl. 2(D) as under: "That the lessee shall be entitled to use the leased land for agricultural purposes or may develop it at their own cost, for any other use that they may think fit in accordance with law during the said term. They shall also be entitled to construct any such structure or build ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is erroneous in so far as it is prejudicial to the interest of the revenue". 9. In the case of Rampyari Khemka their Lordships of the Calcutta High Court had an occasion to deal with an order u/s 33B of the Indian IT Act, 1922, which is pari materia with s. 263 of the Act. In that case, their Lordships held: "......that as the Commissioner in passing the order u/s 33B had taken into account new and much more serious factors than were disclosed in the notice and the assessee was not given an opportunity to be heard, the order was invalid. The fact that the assessee was not prejudiced by the order or that the further charges could have been communicated to her if she had appeared at the hearing was immaterial. If there has been a violation of rules of natural justice it is immaterial whether the same results would have been reached if there were no violation of such rules or that the person concerned was not really prejudiced". In the said case, their Lordships at page 613 of the report observed that "an order made in violation of the rules of natural justice is not an order at all." In the instant case, the contents of the show cause notice issued by the CIT is different from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of the ld. Deptl. Rep. on the case of Rampyari Devi Saraogi is misplaced as the facts of the instant case are quite different. In that case, their Lordships held that "all the additional material was supporting material and did not constitute the basic grounds on which the order u/s 33B was passed, and even if the facts which the Commr. introduced regarding the enquiries made by him had been indicated to the assessee the result would have been the same. The assessee had not in any way suffered from the failure of the Commr. to indicate the results of the inquiries." The facts of the instant case are different. Reliance of the ld. Deptl. Rep. on the case of Thalibai F, Jain and Ors. is also misplaced because that was a case where assessment was framed without enquiry and evidence and in undue haste. In that case, no enquiry was made by the ITO as observed by their Lordships, and hence the assessment was held to be prejudicial to the interest of the revenue. In the instant case, it was after discussing with the representative of the assessee and going through the lease deed that the ITO came to a conclusion in favour of the assessee in respect of agricultural income in the cours ..... X X X X Extracts X X X X X X X X Extracts X X X X
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