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PETITIONER: THE COMMISSIONER OF INCOME-TAX, BANGALORE

       Vs.

RESPONDENT: SHREE MAN JUNATHESWARE, PACKING PRODUCTS & CAMPHOR WORKS

DATE OF JUDGMENT:       02/12/1997

BENCH: G.T. NANAVATI, M. JAGANNADHA RAO.

ACT:

HEADNOTE:

JUDGMENT:                THE 2ND DAY OF DECEMBER, 1997 Present :              Hon’ble Mr. Justice G.T. Nanavati              Hon’ble Mr. Justice M. Jagannadha Rao K.N. Shukla,  Sr. Adv.,  B.k. Prasad,  and S. Rajappa, Advs. with him for the appellant Ms. Indu Malhotra, Adv. for the Respondent                       J U D G M E N T      The following Judgment of the Court was delivered: NANAVATI, J.      Leave granted.      Heard learned counsel on both the sides.      This appeal arises out of the judgment and order passed by the  High Court of Karnataka on 6th Jun, 1995 in I.T.R.C. No. 26/93.  The question that was referred to the High Court was:      " Whether,  on the facts and in the      circumstances of    the  case,  the      Appellate Tribunal  i right  in law      in holding  that the  word ’record’      used in  Sec. 263  (1) of  the  Act      would not  mean the  record  as  it      stands at  the time  of examination      by the  Commissioner, but  it means      the record as it stands at the time      the order in question was passed by      the ITO?"      The respondent-firm,  during the previous year relevant to   the assessment  year 1977-78,  had constructed a cinema theatre and  in the return filed by it had shown the cost of construction at Rs. 20,28, 498/- (Rs. 23,78, 242 less Rs. 3, 49, 644  being electric  portion). The income-Tax Officer on 2nd February,  1980  wrote  to  the  Departmental  Valuation Officer to ascertain and report correct cost of construction of  the   theatre.  The   Valuation  Officer  expressed  his inability to  give his  valuation report by 31st March, 1980 by which  date the  assessment  was  to  be  completed.  The Income-Tax  Officer,  therefore,  without  waiting  for  his report, passed  an order  assessment accepting the valuation mentioned by  the assessee  in  its  return.  The  Valuation

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Officer submitted  his report  on 16th  December,  1980.  He determined the  cost of construction at Rs. 34, 58, 600/- as against Rs. 20, 28, 498/- stated by the assessee. Therefore, the Commissioner of Income-Tax issued a notice under Section 263(1) of  the Income-Tax  Act to the assessee on the ground that investment  not  accounted  for  by  the  assessee-firm should have  been brought  to tax and the income-Tax officer having not  done so, his order was erroneous and prejudicial to the  interest of the Revenue. Before the Commissioner, it was contended  by the  assessee that as the Valuation Report was not  available to  the Income-Tax officer at the time of passing the  assessment order  and did  not form part of the record of  the proceeding, it could not be a valid basis for initiating an  action under  Section 263  of  the  Act  and, therefore,  the  proceeding  deserved  to  be  dropped.  The decision of  the Calcutta High Court in Ganga Properties V/s [(1979) 118  ITR 447]  was relied  upon in  support of  that contention. The  Commissioner rejected it on the ground that the term ’record’ would include all records available at the time of examination by him, set aside the assessment made by the Income-Tax  Officer and  directed him  to pass  a  fresh assessment order in light of the observations made by him.      The assessee  preferred an  appeal to  the  Income  Tax Appellate Tribunal  against that  order. The Tribunal upheld the contention  of the assessee relying upon the judgment of the Calcutta  High Court  in Gaga  Properties case  (supra), allowed the  appeal and  set aside  the order  passed by the Commissioner.      At the  instance of  the Revenue,  the question  stated above was  referred to  the High  Court of karnataka for its opinion. The  High Court after referring to the decisions of the Calcutta  High Court in Ganga Properties case and C.I.T. V/s. S.M.  Oil Extraction  Pvt. Ltd.  [(1991) 190  ITR 404], held that  though the record contemplated by section 263 (1) does not  mean only the order of assessment but it comprises all proceedings  on which  the assessment  is based,  yet if there was some record which was not available on the date of completion of  assessment that record would not form part of the order  of the  assessment  authorities.  It,  therefore, answered the question in affirmative, i.e., in favour of the assessee  and   against  the   Revenue.  The   Revenue  has, therefore, filed this appeal.      Mr. Shukla,  learned counsel for the Revenue, submitted that in  view of  the amendments  made in Section 263 (1) by the Finance  Act 1988  and the Finance Act of 1989, the term ’record’ would  mean all records relating to that proceeding available at the time of examination by the Commissioner. He further submitted  that even  though  the  Valuation  Report submitted by  the Departmental  Valuation  Officer  was  not available to  the Income-Tax  officer when he had passed the assessment order,  it became  a  part  of  the  record  and, therefore, it  was open  to the Commissioner to consider the same  while  exercising  his  revisional  power  under  that section.  strongly  opposing  these  submissions,  Ms.  Indu Malhotra,  learned   counsel  appearing  for  the  assessee, submitted that  as the  Commissioner had passed the order on 3rd March,  1982, the amendments made in Section 263 (1), in 1988 and  1989, though with retrospective effect cannot have the effect of validating the order of the Commissioner which was illegal  when passed.  She submitted that when the order was passed  by the  Commissioner the correct position of law was that only that record which was available to the income- Tax Officer  could be considered by the Commissioner for the purposes of  exercising his power under Section 263 (1). She submitted that the legislature by adding the explanation and

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widening the definition of the term ’record’ has now enabled the Commissioner  to take  into  consideration  all  records relating to  the proceeding.  In her  submission,  the  1989 amendment had only limited retrospective effect. If an order passed by  the Commissioner  under Section  263,  after  1st June, 1988,  was challenged  on the ground that he had taken into consideration  the material, which was not available to the Income-tax  Officer, when  he had  passed the assessment order, then  its validity  had to be determined on the basis that not  only all  the record  of that  proceeding but  the record  relating   to  it   was  also   available   to   the Commissioner. But  an order passed before 1st June, 1988, if it was  illegal for  the  reason  that  it  had  taken  into consideration other  material also,  then the  amendment  of 1989 did not have the effect of making it legal.      Earlier  Section   263  (1)   did   not   contain   any explanation. It  enables the  Commissioner to  call for  and examine the  record of any proceeding under the Act and 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, if he  considers that  any order  passed  by  the  assessing officer is  erroneous insofar  as it  is prejudicial  to the interests of  the Revenue.  By the Taxation Laws (Amendment) Act, 1984,  an explanation  was added to Section 263 (1) for removal of  certain doubts  but it is not necessary to refer to that  explanation as  it related  to the  meaning of  the expression "order  passed by  the  assessing  officer"  and, therefore, not relevant for the purpose of this case. By the Finance Act.  1988, the  said  explanation  was  substituted w.e.f. 1st  June, 1988.   The reason why the Legislature had to  make   that  amendment   is  stated  in  the  Memorandum explaining the  provisions in  the Finance  Bill of 1988. We will refer  to only  that part  which is relevant for us. It was observed  by the  Legislature that  the provision  as it stood then,  had  given  rise  to  judicial  controversy  in respect of the following:      "48.   x       x     x     x      x      x     x     x      x      (a) On  the interpretation  of  the      term ’record’ . It has been held in      some cases  that the  word ’record’      in section  263 (1)  could not mean      the record  as it stood at the time      of examination  by the Commissioner      but it meant the record as it stood      at the  time of  examination by the      Commissioner  but   it  meant   the      record as it stood at the time when      the  order   was  passed   by   the      Assessing    Officer.    Such    an      interpretation   is   against   the      legislative intent  and defeats the      very   objective   sought   to   be      achieved by  such provisions, since      the purpose  is to revise the order      on the  basis of  the record  as is      available to  the  Commissioner  at      the time of examination.      x         x        x       x      x      x      x      x      x      To  eliminate   litigation  and  to      clarify the  legislative intent  in      respect of  the provisions  in  the      three  Direct   tax  Acts,   it  is

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    proposed  to   clarify  the   legal      position  in   this  regard     the      Explanation   to    the    relevant      Sections. The  proposed  amendments      are intended  to make it clear that      ’record’ would  include all records      relating to  any proceedings  under      the  concerned   direct  tax   laws      available   at    the    time    of      examination by the commissioner."      The  relevant   part  of   the  explanation  after  its substitution read as follows:      "Explanation.- For  the removal  of      doubts, it is hereby declared that,      for  the   purposes  of  this  sub-      section,-      (a) ................      (b) "record"  includes all  records      relating to  any  proceeding  under      this Act  available at  the time of      examination by the Commissioner;      (b) ........................... "      Thus,  by   this  amendment,  definition  of  the  term "record" for the purpose of Section 263, was provided by the legislature. But  a doubt  regarding the meaning of the term ’record’ still persisted and, therefore, a further amendment was made  by the  Legislature while  enacting Finance Act of 1989.  The  Memorandum  explaining  the  provisions  in  the Finance Bill,  1989 makes  that clear.  Paragraph 28  of the said Memorandum reads as under:      "28. Under  the existing provisions      of Section  263 of  the  Income-tax      Act and corresponding provisions of      the Wealth-tax Act and the Gift-tax      Act, the Commissioner of Income-tax      is  empowered   to  call   for  and      examine   the    record   of    any      proceeding and if he considers that      the order  passed by  the Assessing      Officer is  erroneous in  so far as      it is  prejudicial to the interests      of Revenue,, he may pass such order      thereon as the circumstances of the      case justify,  including  an  order      enhancing    or    modifying    the      assessment, or  cancelling the same      or directing a fresh assessment. By      the   Finance    Act,   1988,    an      Explanation was   substituted  with      effect from  1st June, 1988, to the      relevant sections of the Income-tax      Act, Wealth-tax  Act  and  Gift-tax      Act  to   clarify  that   the  term      "record" would  include all records      relating    to    any    proceeding      available   at    the    time    of      examination  by  the  Commissioner.      Further, it was also clarified that      the Commissioner  is  competent  to      revise  an   order  of   assessment      passed by  the Assessing Officer on      all matters except those which have      been considered  and decided  in an      appeal. The  above Explanation  was      incorporated in  the  Finance  Act,

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    1988,   to   clarify   this   legal      position to  have have  always been      in   existence.    Some   Appellate      Authorities have,  however, decided      that  the  Explanation  will  apply      only prospectively,  i.e., only  to      those orders  which are  passed  by      the  Commissioner  after  1.6.1988.      Such an  interpretation is  against      the legislative  intent and  it is,      therefore,   proposed    to   amend      section 263  of the income tax Act,      so   as   to   clarify   that   the      provisions of the explanation shall      be deemed  to have  always been  in      existence.      Amendments on  the above lines have      been proposed  in section 25 of the      Wealth-tax Act  and section  24  of      the Gift-tax Act also."      After  that   amendment,  the   relevant  part  of  the Explanation reads as under :      "Explanation.- For  the removal  of      doubts, it is hereby declared that,      for  the   purposes  of  this  sub-      section,-      (a)...................      (b)  "record"   shall  include  and      shall  be  deemed  always  to  have      included all  records  relating  to      any  proceeding   under  this   Act      available   at    the    time    of      examination y the Commissioner".      After referring  to the  history of  this provision, we will now  refer to  the decisions, which were relied upon by the learned counsel in support of the rival contentions with respect to  the correct interpretation of the word "record". The Calcutta  High Court  in Ganga Properties vs. Income-tax Officer [(1979) 118 ITR 447], after observing that provision of section  263(1) of  the   Act has to be understood on its own  language   and  in   the  context   of  the  revisional jurisdiction of  the Commissioner  conferred by  it and also the scheme of the Act, held as under:-      "Whereas s.  263(1) of the Act uses      the words  "is erroneous"  and  not      the words  "has become subsequently      erroneous". Under this section, the      Commissioner  may   call  for   and      examine   "the   record"   of   the      "proceeding" in  order to  consider      in his  revisional jurisdiction  as      to whether the order in question by      the ITO "is erroneous" . Therefore,      he is  to call  for the "record" of      the "proceeding"  which was  before      the ITO  and examine it in order to      consider whether  on the  basis  of      the material  which were before the      ITO and  formed part of that record      the order  passed  by  the  ITO  is      "erroneous" and  prejudicial to the      interests of the revenue.      Therefore, the materials which were      not in  existence at  the time  the      assessment was  made but afterwards

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    came  into  existence  cannot  form      part   of   the   record   of   the      proceeding of  the ITO  at the time      he   passes    the    order    and,      accordingly,  it  cannot  be  taken      into    consideration     by    the      Commissioner for  the  purposes  of      invoking  his   jurisdiction  under      this section,  for  he  is  not  an      appellate  authority   under   this      section    and     exercise    only      revisional jurisdiction  and  hence      he can only take into consideration      the record  as it  stood before the      ITO  and   the  materials  in  such      record   for    the   purposes   of      ascertaining whether  the order  in      question    was    erroneous    and      prejudicial to the interests of the      revenue.      In other  words, any material which      comes  into   existence  later   on      cannot form  part of  the record of      the ITO for the puposes of invoking      the Commissioner’s  power under  s.      263(1) of  the Act.  And it is only      after the  proceeding  is  lawfully      initiated by  the  Commissioner  on      the basis  of the record of the ITO      that the Commissioner can take into      account any material which may come      into existence  later on in view of      the  expression  "after  making  or      causing to  be made such enquiry as      he deems  necessary"  used  in  the      second limb of this section."      The Calcutta  High Court  interpreted the word "record" under Section  263 (1)  before it was amended by the Finance Acts of  1988 and  1989. Following that decision Kerala High Court in  Commissioner of  Income-Tax vs.  M.A. Unneerikutty [(1992) 194  ITR 546], also took the same view. in that case attention  of  the  Kerala  High  Court  was  drawn  to  the amendments made  by Finance  Acts of 1988 and 1989. The High Court, however,  did not  consider the  effect of  the  said amendments as  it was of the view that there was no occasion for the  Tribunal to  consider  the  scope  of  the  amended Section because  it came into force only in 1988, much later than the order disposing, of the revision and , therefore no such question arose out of the order of the Tribunal. It was submitted by  the learned  counsel for  the respondent  that Section 263(1)  as thus  interpreted  by  the  Calcutta  and Kerala High  Courts before  it was  amended in 1988 and 1989 and, therefore, that was the correct legal position till 1st June, 1988.  The learned  counsel also drew our attention to the decision  of Allahabad  High Court  in  Commissioner  of Wealth Tax  vs. Raj  Narain Pratap  Narain (HUF) [(1989) 177 ITR 34]. In that case, in the wealth-tax proceedings for the assessment years  1978-79 and  1979-80 the Assessing Officer had  determined  the  fair  market  value  of  an  immovable property at  Rs.7,35,086/- as  on the  two  valuation  dates relevant for  the years  in dispute. After the completion of those assessments, the Commissioner of Wealth-tax, on coming to know that the property was sold by the assessee on August 18, 1983  for a  consideration of  Rs. 36  lakhs,  initiated proceeding under  Section 25(2)  of the  Wealth-Tax Act  and

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subsequently passed an order holding the impugned assessment orders erroneous  and prejudicial  to the  interests of  the revenue. On appeal by the assessee, the Income Tax Appellate Tribunal held that "the expression "record" in section 25(2) of the  Act cannot  mean the record as it stands at the time when the action under that section is taken but it means the record s  it stands  when the assessment order was passed by the assessing officer". In support of this view the Tribunal had relied  upon the  decision of the Calcutta High Court in Ganga Property’s  Case (supra).  Against the  order  of  the Tribunal the  commissioner of  Wealth Tax  had preferred two applications under  section 27(3)  of the wealth-Tax Act but they were  rejected by the High Court. The view taken by the Allahabad High  Court was  that the  question raised  by the Department was  academic because the Tribunal had not passed its order entirely on the meaning of the expression "record" and the  other  reasoning  on  which  the  decision  of  the Tribunal was  based was  a factual one and was equally fatal to the cause of revenue. This decision is, therefore, of not any help at all.      She further  submitted that  in a  matter arising under the Wealth-tax  Act Gujarat  High Court  had also  taken the same view  and the Department’s special leave petitions Nos. 8511-13 of  1984 (Commissioner of Wealth-tax vs. Rajshree S. Parekh) [(1991)  ITR Statutes p. 76] though were heard after the said two amendments, this Court dismissed them summarily and thus  the view  taken by  the  Gujarat  High  Court  was upheld. In that case the Wealth-tax Officer had assessed the assessee’s property as per the approved valuer’s report. The commissioner in  suo motu  revision  directed  valuation  in accordance  with   the  departmental  valuer’s  report.  The Tribunal allowed  the assessee’s  appeal against  the  order passed  by   the  Commissioner   and   also   rejected   the Department’s reference  application.  The  High  Court  also rejected the  reference application  made by  the Department had filed the said special leave petitions in this Court. It is  true  that  the  said  special  leave  petitions    were dismissed summarily  but that would not mean that this Court approved the view that was taken by the High Court.      In a  later decision  in Commissioner of Income-Tax vs. S.M. Oil  Extraction Pvt.  Ltd. [(1991)  190 404],  Calcutta High Court itself interpreted the word "record" differently. In that  case the  assessment was  completed on  February 1, 1983.  The  Income  Tax  Officer  before  he  completed  the assessment had  referred the  matter of  plant and machinery and electrical  installation to the Valuation Officer (P&M). His report  was not  received by the Income Tax Officer when the assessment  was completed.  It was received by him after the assessment proceeding was completed. The Commissioner of Income-Tax took into consideration the said Valuation Report and found  the assessment  order erroneous.  In that context the question  which had arisen for consideration was whether the Commissioner.  in exercise of jurisdiction under Section 263 (1)  o the  Act could  have relied  upon  the  valuation report which  had come into the possession of the Income-tax Officer subsequent  to the completion of the assessment. The Calcutta High  Court held  that "the  record contemplated in section 263(1) does not mean only the order of assessment is based. The  Commissioner is  entitled, for  the  purpose  of exercising his  revisional jurisdiction,  to look  into  the whole evidence.  The expression  "record" as used in section 263 of  the Act is comprehensive enough to include the whole record of  evidence on  which the  original assessment order was  passed.  The  valuation  proceeding  is  apart  of  the assessment proceeding.  But once  the valuation  report  was

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received by   the Income Tax officer, although subsequent to the completion  of the  assessment, it  forms  part  of  the assessment year  in question."  It further  held that "where any proceeding  is initiated in the course of the assessment proceeding having  a relevant  and material  bearing on  the assessment to  be made and the result of such proceeding was not  available   with  the  Income-tax  officer  before  the completion  of   the  assessment,   but  the   result   came subsequently, the  revising authority  is entitled  to  look into such  material as  it  forms  part  of  the  assessment records of  the particular  assessment year".  Calcutta High Court took  this view without referring to the definition of the word  "record" contained  in the  explanation to Section 263(1) of the Act.      It, therefore,  cannot be  said, as  contended  by  the learned counsel  for the   respondent,  that the correct and settled legal  position, with  respect to the meaning of the word "record"  till 1st  June, 1988,  was that  it meant the record which  was available to the income Tax Officer at the time of  passing of the assessment order. Further, we do not think that such a narrow interpretation of the word "record’ was justified,  in view  of the  object of the provision and the nature  and  scope  of  the  power  conferred  upon  the Commissioner.  The   revisional  power   conferred  on   the commissioner under  Section 263  is of  wide  amplitude.  It enables the  Commissioner to call for and examine the record of  any   proceeding  under   the  Act.   It  empowers   the commissioner to  make or cause to be made such enquiry as he deems necessary  in order to find out if any order passed by the  assessing   officer  is  erroneous  insofar  as  it  is prejudicial to the interests of the revenue. After examining the record and after making or causing to be made an enquiry if he  considers the  order to be erroneous then he can pass the order  thereon as the circumstances of the case justify. Obviously, as  a result  of  the  enquiry  he  may  come  in possession of new  material and he would be entitled to take that new  material into  account. If the material, which was not available  to the  Income-Tax Officer  when he  made the assessment could  thus be  taken into  consideration by  the Commissioner after  holding an  enquiry, there  is no reason why the  material which  had already  come on  record though subsequently to the making of the assessment cannot be taken into consideration  by him.  Moreover, in  view of the clear words used  in clause  (b) of  the explanation   to  Section 263(1), it  has to  he  held  that  while  calling  for  and examining the  record of any proceeding under Section 263(1) it is  and it was open to the Commissioner not only consider the record  of that  proceeding but also the record relating to  that   proceeding  available  to  him  at  the  time  of examination.      The view  that we  are taking receives support from the two decisions  of this  Court, though  the  point  which  is raised before  us was  not specifically  raised in those tow cases.  In   Tax  Reference   Case  No.   11  of  1983  (The Commissioner of  Income-Tax, Gujarat-I vs. Shri Arbuda Mills Ltd.)  this  Court  after  considering  the  effect  of  the amendment made  in Section  263(1) of the Act by the Finance Act. 1989  whereby lause  (c) of  the explanation  was  also amended with  retrospective effect from 1st June, 1988, held that "the  consequence  of  the  said  amendment  made  with retrospective effect is that the powers under Section 263 of the Commissioner  shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in  an appeal.  Accordingly, even  in respect of the aforesaid three  items, the powers of the Commissioner under

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Section 263  shall extend and shall be deemed always to have extended to them because those items had not been considered and decided  in the  appeal filed  by the assessee." In that case the assessment was completed o 31.3.1978 and the Income Tax Officer  while computing loss and income of the assessee had accepted  the claim  of the assessee in respect of those three items.  Obviously in the appeals filed by the assessee those items  were not  the subject-matter  of the appeals as the decision  in respect  thereof  was  in  its  favour.  In respect of  those three items the Commissioner had exercised his power  under Section  263 of  he income-Tax  Act  and  , therefore, the  question which  had arisen for consideration was "whether  on the  facts and  in the circumstances of the case, the  order of  assessment passed by the ITO u/s 143(3) read with  section 144B on 31.7.1978 had merged with that of the Commissioner  (appeals) dated  15.10.1979 in  respect of the three items in dispute so as to exclude the jurisdiction of the  Commissioner of  Income-Tax under sec 263?" Thus the amendment made in clause @ was held applicable to the orders passed before 1st June, 1988.      In  South   India  Steel   Rolling  Mills,  Madras  vs. Commissioner of  Income Tax,  Madras [1997 (9) SCC 728], the Commissioner in  exercise of his power under Section 263 had withdrawn the development rebate granted for the years 1962- 63, 1963-64,  1967-68 and  1968-69 on  the ground that since the partnership  stood dissolved on 3.3.1968 on the death of one of  the two  partners, before  the expiry of eight years the assessee  firm was  not entitled  to the  benefit of the development rebate  under Section  33(1) (a) of the Act. The said order  passed by the Commissioner was challenged before the Tribunal  but the  assessee’s appeal  had failed. At its instance the  following question  was referred to the Madras High Court:-      "Whether   on    the   facts    and      circumstances  of   the  case   the      revision   of    assessment   under      section 263 by the Commissioner for      withdrawing the  development rebate      granted for  Assessment years 1962-      63, 1963-64, 1967-68 and 1968-69 is      proper and justified."      The High  Court also  decided against  the assessee. In the appeal  filed by  the assessee the order of Commissioner was challenged inter alia on the ground that the power under Section 263  could have  been invoked  on the  basis of  the record as  it stood  when the order was passed by the Income Tax Officer  and that it was not open to the Commissioner to take into  account dissolution  of the  assessee firm, which took place  after passing  of the  assessment order  because that circumstance  was not disclosed by the record which was before the  Income Tax  Officer. Rejecting  this  contention this Court held "As regards his taking into consideration an event which  had occurred  subsequent to  the passing of the order by  the Income-Tax  Officer, it  may be stated that in Explanation (b) in Section 263 there is an express provision wherein it  is prescribed  that "record  shall  include  and shall be deemed always to have included all records relating to any  proceeding under  this  Act  available  at  time  of examination by  the Commissioner".  The death  of one of the two partners  resulting in  the dissolution  of the assessee firm on  account of  such death  took  place  prior  to  the passing of  the order  by the  commissioner  and  it  could, therefore, be  taken  into  consideration  by  him  for  the purpose of  exercising his  powers under  Section 263 of the Act." In that case also the amendment was held applicable to

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an order passed before 1st June, 1988.      We,  therefore,   hold  that   it  was   open  to   the Commissioner to  take into  consideration  all  the  records available at  the time  of examination  by him  and thus  to consider the  Valuation Report submitted by the Departmental Valuation Cell  subsequent to  the passing of the assessment order and,  so the  order passed  by him was legal. The High Court was  wrong in  taking a  contrary view. We, therefore, allow this  appeal, set  aside the judgment and order passed by the  High Court  and answer  the question referred to the High Court in the negative i.e. in favour of the Revenue and against the assessee. In view of the facts and circumstances of the case, there shall be no order as to costs.