High Court Of Rajasthan
CIT, Jaipur Vs. Maharao Bhim Singh
Ajay Rastogi, Mohammad Rafiq And Alok Sharma, JJ.
D.B. I T Reference No. 64 Of 1986
March 26, 2014
Mohammad Rafiq, J. – This reference has been made by the Division Bench vide order dated 25.05.1988 to the Larger Bench on account of conflict opinion expressed by two Division Benches of this court on the question whether the rental income received by the Ruler from part of the palace, which was declared as his official residence under the Merged States (Taxation Concessions) Order, 1949 or Part B States (Taxation Concessions) Order, 1950, would be exempt from income tax or the same would be included in the total income of the Ruler as an assessee for the purpose of taxation?
2. Earlier Division Bench judgment was rendered in Maharava Lakshmansingh v. CIT  160 ITR 103/27 Taxman 124 (Raj.), in which it was held that under Section 10 (19A) of the Income Tax Act, 1961, the annual value of any one palace in the occupation of a Ruler is exempt from tax in computing his total income. The Division Bench, while interpreting the phraseology “the annual value of any one of the palace in the occupation of Ruler”, relied on judgment of the Supreme Court in Industrial Supplies (P.) Ltd. v. Union of India AIR 1980 SC 1858, for distinction between ‘owner’ and ‘occupier’, wherein meaning of these words was considered and it was held that in legal sense the ‘occupier’ is a person in actual occupation. The Division Bench also relied on the Delhi High Court judgment in Mohammad Ali Khan v. CWT  140 ITR 948/12 Taxman 330. The word “occupation” means that the Ruler (occupier) continues to occupy the palace, i.e., it should be in his actual use or actual possession and he should exercise actual physical control over the palace. When a portion of the palace has been let out to tenants on rent, the Ruler is not in occupation of the entire palace and cannot be said to be in actual possession or in actual use of the portion of the palace occupied by the tenants. Therefore, the annual value of the portion of the palace which was rented out to the tenants, is not exempt from tax and is to be added to the total income of the Ruler.
3. In subsequent Division Bench judgment in CIT v. H.H. Maharao Bhim Singhji  173 ITR 79/36 Taxman 270 (Raj.), it was held that exemption would be available in respect of entire palace where the palace of the Ruler of Indian State is declared to be his official residence, even if part of the palace is given on rent. It is not possible to split up one palace into parts for granting exemption only to that part, which is in self-occupation of a Ruler as his official residence and to deny the benefit of exemption to the other portion of the palace rented out by him, since the entire palace is declared as his official residence.
4. Earlier to 28.12.1971, the bona-fide annual value of the palaces of Rulers of the Indian States, which were declared by the Central Government as their official residence, was exempt from the income-tax. Such exemption was provided under the Merged States (Taxation Concessions) Order, 1949 and Part B States (Taxation Concessions) Order, 1950. Sub-clause (iv) of Clause (13) to the Merged States (Taxation Concessions) Order, 1949, as amended by Order No.377 dated March 14, 1951, provided that “the bona-fide annual value of the palaces of Rulers of Indian States, which are declared by the Central Government as the official residence of such Rulers,” shall be exempt from income-tax and super tax and shall not be included in the total income of person. Same provision was reiterated by the Central Government in Clause 15(iii) of the Concession Order 1950 except the difference that in this clause the word ‘palaces’ was substituted by the word ‘palace, thus signifying that exemption of the bona-fide annual value thereof, would be restricted to a singular palace. Clause 15(iii) of the Concession Order 1950, reads as under:—
“Clause 15 – Exemption: Any income falling within the following classes shall be exempt from income tax and super tax and shall not be included in the total income or total world income of the person receiving them:
“(i) to (ii)**
(iii) The bona fide annual value of the residential palaces of the Ruler of a State which is situate within the State and is declared by the Central Government as his inalienable ancestral Property.”
5. The Central Government in pursuance of the provisions of Clause (iii) of Paragraph 15 of the Concession Order 1950 by notification SRO 1619 dated 14.05.1954 declared ‘Ummed Bhawan’ and ‘City Palace’ of the Ruler of Kota as his official residence, which were listed at Clause 21 of the said Notification, as the “palaces” so exempt from income-tax and super tax.
6. Indisputably, till the passes of the Constitution (Twenty-sixth Amendment) Act, 1971, the bona fide annual value of the residential palaces or palace of the Rulers declared by the Central Government, as unalienable ancestral property, was exempt from income-tax and super tax. By the said Act however Article 291 of the Constitution of India, relating to privy purse sums of Rulers and Article 362 relating to Rights and Privileges of Rulers of Indian States, were omitted. Article 363-A was inserted, which provided that recognition granted to the Rulers of Indian States would cease and privy purses would stand abolished. New definition of “Ruler” was inserted by Clause (22) of Article 366. Simultaneously, a new enactment in the name of Rulers of Indian States (Abolition of Privileges) Act 1972 was passed by the Parliament, whereunder sub-Section (19A) was inserted in Section 10 of the Income Tax Act 1961, inter-alia restricting the exemption so granted under the Concession Orders to “any one palace” in the occupation of a Ruler, being a palace, the annual value whereof was exempt from Income Tax before the commencement of the Constitution (Twenty Sixth Amendment) Act 1971. Similar changes were also made by the aforesaid Act of 1972 with effect from 28.12.1971 by adding clause (iii) to Section 5 (1) in the Wealth Tax Act, 1957, which provided as under:—
“(iii) any one building in the occupation of a Ruler, being a building which immediately before the commencement of the Constitution (Twenty Sixth Amendment) Act, 1971, was his official residence by virtue of a declaration by the Central Government under paragraph 13 of the Merged States (Taxation Concessions) Order, 1949, or paragraph 15 of the Part B States (Taxation Concessions) Order, 1950.”
7. It is against the backdrop of these broad facts that the present matter has been laid before this larger bench.
8. We have heard Shri R.B. Mathur, learned counsel for the Revenue and Shri A.K. Sharma, learned senior counsel, Shri P.K. Kasliwal, learned counsels appearing for the assessee and Shri Naresh Gupta and Shri Anil Mehta, learned counsel appearing as intervener.
9. Shri R.B. Mathur, learned counsel for the Revenue, has argued that above referred to amendments in the Income Tax Act, 1961 and Wealth Tax Act, 1957 were simultaneously inserted with effect from 28.12.1971. The provisions relating to exemption available to the Rulers were brought at par in both, except that while word “palace” was used in the relevant provision of the Income Tax Act, 1961 (for short, ‘the IT Act’) and the word “building’ was used in the Wealth Tax Act, 1957 (for short, ‘the WT Act’). Prior to this amendment, any number of palaces could be declared as official residence in Para 15 of the Concession Orders, 1950 for the purpose of the IT Act. However, the position was different under the WT Act, wherein even prior to 1971 any one building in the occupation of Ruler declared by the Central Government as his official residence was exempt from Wealth Tax.
10. It is argued that the word “palace” under the IT Act and the word “building” under the WT Act will not make any difference as in both the cases, they are required to be declared official residence under the Concession Order of 1950. The Concession Order of 1950 uses word “palace” and the notification issued in the case of assessee on 14.05.1954 had declared two palaces as his official residence. The word “building” in WT Act is used in the light of the definition of “assets” as mentioned in Section 2(e) of the Act. The building, which is exempt, must be official residence of the Ruler. Meaning thereby, the legislature has granted exemption only to the building, which was his official residence by virtue of declaration under the Taxation Concession Order of 1950. It means that “building” mentioned in the WT Act and the “palace” mentioned in the IT Act, are one and the same.
11. Shri R.B. Mathur, learned counsel for the Revenue, has submitted that the first direct judgment on the issue is of the Delhi High Court in the case of Mohammad Ali Khan (supra) . This has been upheld by the Supreme Court vide its judgment Mohammad Ali Khan v. CWT  224 ITR 672/92 Taxman 52 with the same title. Earlier Division Bench judgment of this Court in Maharaval Lakshman Singh case (supra) rightly followed the Delhi High Court judgment in Mohammad Ali Khan case’s, (supra). In fact, subsequently, Supreme Court in CWT v. Lokendra Singh  249 ITR 671/116 Taxman 605 has also followed the same analogy. In all these judgments, the courts have held that Ruler/assessee would not be entitled for exemption in respect of part of the palace, which has been let out and is not in his occupation.. Subsequent Division Bench judgment of this court in H.H. Maharao Bhim Singh case (supra) is based the judgment of Madhya Pradesh High Court in CIT v. Bharatchandra Banjdeo  154 ITR 236/ 27 Taxman 4
56. Earlier judgment of this court in Maharaval Laxman Singh case, (supra), was not cited before the division bench in H.H. Maharao Bhim Singh case (supra), which is evident from observation therein that no contrary decision has been cited. The subsequent judgment of Division Bench of this court in H.H.Maharao Bhim Singh, case (supra), having thus been rendered in ignorance of the earlier Division Bench judgment in Maharaval Lakshman, (supra), cannot be said to lay down correct law and in the submission of the learned counsel, the judgment is per incurium.
12. Shri R.B. Mathur, learned counsel argued that Section 23 of the IT Act only gives mode of calculating annual value of a property. Section 2(2) of the IT Act defines “annual value” in relation to any property. Section 22 pertains to income from house property. Annual value has to be determined in accordance with Section 23 of the IT Act. At the relevant point of time, even the house property in occupation of the owner for purpose, of his residence was also having annual value. It is otherwise clear from the provisions of Section 23 that the valuation of only one property or its part, which is in occupation of owner for his residential purpose is taken to be ‘nil’. Learned counsel for the Revenue argued that it is settled proposition of law that provisions relating to deductions/incentives are to be strictly constructed and if there be any doubt, benefit thereof has to go to the Revenue and not to the assessee.
13. Per contra, Shri Ajeet Kumar Sharma, learned senior counsel appearing for the assessee, has argued that the Central Government at the time of accession of the princely States in India, granted certain privileges, concession and exemptions by virtue of covenant and agreement entered into between them. The Central Government granted several exemptions to Rulers of the Indian State, and one of them was exemption in respect of the income tax and super tax on annual value of palaces, which were declared as official residence of the Ruler. There was at that time no wealth tax, as the WT Act came into effect from 01.04.1957. Clause 15(iii) of the Taxation Concessions Order of 1950 incorporated such exemptions. It is argued that only effect of subsection (19A) inserted in Section 10 of the IT Act, following the enactment of Indian States (Abolition of Privileges) Act 1972, was that instead of several palaces in occupation of Ruler, annual value of any one palace in occupation of Ruler, was exempt from the income tax.
14. It is argued that even if one part of the palace is in the self occupation of the former Ruler and another part has been let out, the exemption under Section 10 (19A) would still be available for the entire palace. It is argued that no contrary decision was cited by the Revenue, and this court while deciding the reference, considered the decision of the Madhya Pradesh High Court in Baratchandra Bhanjdeo’s case (supra). The Madhya Pradesh High Court in Baratchandra Bhanjdeo’s case, (supra), vide order dated 29.01.1985 held that the significant words in clause (19A) are “one palace in the occupation of a Ruler”. It is a Palace, which was under the Merged States (Taxation Concessions) Order, 1949, declared to be the official residence of a Ruler. Clause 10 (19A) does not contemplate further splitting up of portions of a palace into residential and let out portions. Therefore, even if only a part of a palace is in the occupation of a Ruler and the rest has been let out, the exemption would be available for the entire palace.
15. Shri Ajeet Kumar Sharma, learned senior counsel, argued that the Madhya Pradesh High Court while deciding the case in Bharatchandra Banjdeo, (supra), has considered and distinguished the judgment of Delhi High Court in Mohammad Ali Khan case, (supra), which was a case under the WT Act. The question of law that was considered therein was that if the palace, which was declared to be official residence of the Ruler, had a number of buildings, and the exemption under the WT Act is available only in respect of one building, which is in his occupation and, therefore, the assessee’s contention that other buildings, which may not be in his occupation but declared to be an official residence and should be exempt from tax, was not accepted. Learned senior counsel argued that Section 10 (19A) has not used the word “building”, the phrase employed is “one palace”. So far as the case in hand is concerned, it is not disputed that this official residence is only one palace and not more than one. Ratio of the Madhya Pradesh High Court decision squarely applies to the present case as further splitting of portions of a palace is not envisaged in Section 10 (19A) of the Act.
16. Another distinction that was pointed out by the learned senior counsel between the provisions of Section 5(1)(iii) of the WT Act and Section 10 (19A) of the IT Act, is that while the former relates to “market value of building”, the latter makes “annual value” of any one Palace as the basis. The judgment of the Supreme Court in Mohammad Ali Khan, case (supra), has therefore wrongly been relied for interpreting Section 10 (19A) by the Division Bench of this Court in Maharvwal Lakshmansingh, supra. The language of Section 5(1)(iii) of the WT Act was considered by the Supreme Court in respect of assessment year 1961-62, much before the introduction of subsection (19A) by amendment in Section 10 of the IT Act with effect from 28.12.1971. The Division Bench in Maharaval Lakshmansingh’s case (supra) has completely lost sight of this aspect and intention of the legislature in bringing about this amendment. No other High Court has approved the line of reasoning expressed by the Division Bench in Maharaval Lakshmansingh’s case, (supra). The Madhya Pradesh High Court in Bharatchandra Banjdeo’s case (supra), has rightly held that case of Mohammad Ali Khan, case (supra), having arisen out of WT Act, is not applicable for the purpose of interpreting Section 10 (19A) of the IT Act. The latter Division Bench judgment of this court in H.H. Maharao Bhim Singhji’s case, (supra), therefore rightly followed Bharatchandra Banjdeo case, (supra).
17. Shri Ajeet Kumar Sharma, learned senior counsel, further argued that the Division Bench in Maharaval Laxman Singh case (supra) has wrongly held that “occupation means actual physical control over the palace and actual possession or in actual use of the portion of the palace”. There is no word in Section 19(19A) in respect of actual physical control over the palace and actual possession or actual use of the portion of the palace, and therefore no such intention is discernible from the language of that provision.
18. Learned senior counsel denied that subsequent Division Bench judgment rendered in H.H. Maharao Bhim Singhji case, (supra), is per-incurium. The issue had already been decided in favour of the assessee by the Division Bench of by this court by judgment dated 12.08.1987 in H.H. Maharao Bhim Singhji’s case (supra), Reference in respect of the assessment year 1973-74 to 1977-78 and thereafter again in favour of assessee vide judgment dated 10.10.2001 (CIT v. H.H. Maharao Bhim Singhji  124 Taxman 26 (Raj.) in DB Reference Case No.51/1989 to 54/1989 for assessment years 1979-80, 1980-81, 1981-82 and 1982-83, and no appeal was filed by the Revenue before the Supreme Court against any of the two judgments. Those judgments thus attained finality. Learned senior counsel relied on the judgment of the Supreme Court in Berger Paints India Ltd. v. CIT  266 ITR 99/135 Taxman 586, and argued that the Supreme Court therein held that “if the Revenue has not challenged the correctness of the law laid down by the High Court and has accepted in the case of one assessee, then it is not open to the Revenue to challenge its correctness in the case of other assessee without just case.” Here, in the present case, the Revenue has accepted the said view for as many as nine assessment years in respect of the same assessee. Reliance, for the same proposition of law, is placed on the judgments of the Supreme Court in Union of India v. Kaumudini Narayan Dalal –  249 ITR 219/117 Taxman 375, CIT. v. Narendra Doshi  254 ITR 606/122 Taxman 717 (SC) and CIT v. Shivsagar Estate –  257 ITR 59/124 Taxman 606 (SC).
19. Reliance is also placed on the judgment of the Supreme Court in Radhasovami Satsang v. CIT  193 ITR 321/60 Taxman 248 and it is argued that the Supreme Court in that case held that each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through different assessment years has been found as a fact, one way or the other, and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in any subsequent year. The present case arises out of assessment year 1978-79 but when the issue involved in the present case has already been decided in favour of the assessee and against the Revenue in respect of five previous assessment years and four subsequent assessment years, and has attained finality, those decisions having not been challenged any further, it is no longer open to the Revenue to plead to the contrary. Not only that the Revenue has accepted two decisions in favour of the assessee, it has also not challenged the judgments of the Madhya Pradesh High Court in Bharat Chandra Banjdeo’s, case (supra), and CIT v. Princess Usha Trust  156 ITR 650/23 Taxman 502, which took the same view. The Income Tax Department being one all over the country, the question of correctness of assessment in respect of the year 1978-79 by it in present case is wholly illegal.
20. Learned senior counsel referred to Section 2(2) of the IT Act for definition of “annual value” and Sections 22 and 23 of the IT Act, and argued that for the purpose of Section 10(19A) of the IT Act, the annual value of the whole palace has to be determined. The first and prime condition for the purpose of “House Property Income”, and for the “Annual Value of the property”, the Annual value of such property, of which the assessee is owner, has to be determined. In other words, the palace, which is owned by and belongs to assessee, i.e. the Ruler, has to be treated as his house. Section 23 of the IT Act, for determination of annual value of the property, covers both (1) self occupied portion and (2) rented portion of the residential palace and both of them collectively determine “Annual Value” of the property i.e. of one palace. Learned senior counsel, argued that if any part of the palace is not legally owned by the Ruler, then “Annual Value” of entire palace cannot be arrived at for the purpose of Section 10(19A) of the IT Act. The Ruler should be owner for the purpose of determining “Annual Value” of the entire palace. Even if the tenant is treated as in occupation of rented portion, he is not owner and hence the annual value of that part cannot be determined, which is very much essential condition of Sections 22 and 23 to arrive at annual value of the whole palace for the purpose of Section 10(19A) of the IT Act. The word “occupation” would therefore mean the palace belonging to and owned by the owner. This therefore clearly shows that the palace cannot be split up for the purpose of Section 10(19A) of the IT Act and exemption is available in respect of the entire palace. In fact, the interpretation, which the Revenue wants this court to adopt, would result in absurd consequences.
21. It is argued that the word ‘occupation’ denotes the right of holding or possessing the property. It denotes the right to control, enjoy or to do some act regarding appropriation of the property.
It is wide term that includes possession, both de-facto civil or constructive. Corpus and animus to control the palace or its parts, always remain vested in the Ruler to control, use and enjoy it either by way of his residence or letting out. In the event of letting out, the mediate possession of it always remains vested in the Ruler through tenant. The legislature has not differentiated among the de-facto and legal possession including immediate or mediate possession as far as income-tax law is concerned. The word ‘in occupation’ is not synonyms of ‘possession’. Section 10(19A) of the Act does not require that ‘any one palace’ should be in actual possession of a Ruler, and the Parliament did not deliberately use the word “actual physical possession or “actual physical control”. The word ‘occupation’ has to be understood in the context of annual value, regardless of actual rent received or receivable by the owner. Emphasis of the legislature is on annual value and the word actual is ‘conspicuous’ by its absence. Even if part of the palace is in possession of the tenant, the same continues to be in symbolic or constructive possession of the Ruler. Even if Ruler is not living in palace or even if he may be living in rented house or has vacated the palace for repair, such temporary absence of the Ruler from actual possession of the palace or any part of it, the Ruler by such temporary absence does not seize to be in occupation. The exemption can be denied only in a situation where the Ruler has parted with the possession of the entire palace. The occupation therefore is determined by dominant use of the palace. If it is principally being used by the Ruler as his residence, merely because he has rented out some parts of it, such as the garage, outhouse, quarters, go-downs or any other part of the building, it does seize to be his official residence.
22. Learned senior counsel lastly submitted that in case of exemption, the language of the statute has to liberally construed. This being a charging Section, the benefit of any ambiguity has to go to the assessee. Even if the word “Occupation” used in the context of Section 10(19A) of the Act of 1961 appears to be ambiguous or capable of more meaning than one, then this Court ought to prefer interpretation which favours the assessee. To buttress this argument, reliance is placed on the judgment of the Supreme Court in CIT v. Vegetable Products Ltd.  88 ITR 192, Pradip J. Mehta v. CIT  300 ITR 231/169 Taxman 454 (SC), Union of India v. . Omkar S. kanwar  258 ITR 761/125 Taxman 121 (SC), CIT v. Gwalior Rayon Silk Mfg. Co. Ltd.  196 ITR 149/62 Taxman 471 (SC), CIT v. J.K. Hosiery Factory  159 ITR 85/25 Taxman 80A (SC) and Mansinghka Bros. (P.) Ltd. v. CIT  147 ITR 361/17 Taxman 260 (Raj.).
23. Shri Naresh Gupta, learned counsel appearing as intervener in response to the notice to the Bar, has, in addition to adopting arguments already made on behalf of assessee, submitted that there was no provision in the IT Act, 1922 (as was in force at the relevant point of time of passing such Concessions Orders) or thereafter, in the Act of 1961 in this regard, until 28.12.1971., when the Constitution (Twenty Sixth Amendment) Act, 1971 was enacted by the Parliament. The controversy has arisen due to use of the phrase “…in the occupation of a Ruler,” suffixed in Section 10(19A) of the Act of 1961 after the words “…any one palace…”. This was a special provision inserted to grant exemption to annual value, which is otherwise chargeable to income-tax in general provision contained in Section 23 of the IT Act. Annual Value in respect of one house or its part, which is in actual occupation of assessee (self-acquired property) has been exempted substantially in Section 23 itself. However, the annual value is chargeable to tax, if such house or its part is let out actually. Further, in the event of having more than one house belonging to assessee,the relaxation is available to only one house and the annual value of other houses is chargeable to tax having deemed the same to have let out, though not let out actually.
24. Shri Naresh Gupta, learned counsel, argued that if the interpretation, which the Revenue is seeking to place on Section 10(19A) of the IT Act, is accepted, it would make the scheme of exemption unworkable or redundant. Because the whole palace comprising of multiple number of buildings or portion thereof, having been declared as official residence of the Ruler by the Central Government, specific provision under Section 10 (19A) of the Act has been inserted to grant exemption of annual value of entire one palace, which is otherwise chargeable to income-tax under Section 23 of the Act. It is the reason why word “palace” in place of “building”, (as used in Section 5(1)(iii) of the WT Act), or in place of “house” (as used in Section 23 of the IT Act), has been used in Section 10(19A). It is argued that the Revenue is not seeking to charge to income tax the other buildings or portions of the same palace, which remain vacant, which otherwise is chargeable to tax under Section 23 of the IT Act. However, it is seeking to charge to tax the other buildings or portions of the same palace, which have been let out actually. Had it been the intention of the legislature, there was no need to insert Section 10(19A) of the Act, inasmuch as the same is covered by Section 23 itself. Section 10(19A), being a special provision, has been inserted to grant exemption which otherwise is not covered by general provisions contained in Section 23. Interpretation of the Revenue if accepted, would lead to an absurdity and inconsistency, as in that situation, part of the provisions of Section 23 would come to play to charge the let out portions or buildings of the same palace and part would not by leaving the other vacant portions and buildings of the same palace. It could not be the intention of the legislature.
25. As per Section 23 of the Act, action of letting out of the property is must for ascertaining the annual value of such property. Letting out of the property may be notional or actual but without letting out of the property, actually or by deeming fiction, the annual value of the property cannot be ascertained. Interpretation of the phrase “…in the occupation of a Ruler…” used in Section 10(19A) of the Act to mean actual residence or actual use or actual possession, in fact, does not fit in with the scheme of exemption of ‘annual value’. In the event of actual use of such palace for residence, as is the interpretation taken by the Revenue, the annual value would be relaxed to substantial extent and now it shall be nil as per general provisions presently contained in Section 23 of the Act. Then there was no need to provide the special exemption under Section 10(19A) of the Act.
26. It is argued that the language was already available to the draftsman in Section 5(1)(iii) of the WT Act, as such, the same in substance has been borrowed therefrom resulting the inclusion of phrase “…in the occupation of a Ruler” in Section 10(19A) of the Act of 1961. The draftsman did not see the necessity or legal implications of the use of such phrase while exempting “the annual value of any one palace”. The uncertainty of the mind of draftsman reflects from the framing of Section 10(19A) of the Act of 1961, which is in two parts and the proviso part in that Section is wholly unwarranted. The phraseology “…in the occupation of a Ruler…” is superfluous and unwarranted for the exemption of annual value under income-tax law and has been used as abundant caution by the draftsman. Learned counsel has also relied on certain excerpts of the Book from the Principles of Statutory Interpretation, 12th Edition 2010, Reprint 2011, by Justice G.P. Singh, in support of his this argument.
27. It is argued that the Supreme Court in Mohammad Ali Khan’s case, (supra), had no occasion to interpret the special provision of exemption contained in phrase “in the occupation of a Ruler”, in reference to “annual value” used in Section 10(19A) of the Act of 1961, more so in the light of general provisions contained in Sections 22 and 23 thereof. The Supreme Court had also no occasion to examine whether such phrase is fit with the scheme of taxation under income-tax law particularly in reference to the words “annual value”. The judgment of the Supreme Court can be relied on for the proposition of law, which it actually decides and not, which can be logically deduced therefrom. When a particular point was neither argued nor considered by the Court, the decision of such court is not authority on such point and such point is said to pass sub-silentio. Reliance, in support of this argument is placed on the judgments of the Supreme Court in Municipal Corpn. of Delhi v. Gurnam Kaur – AIR 1989 SC 38, A-One Granites v. State of U.P. AIR 2001 SC 1203 and Deepak Bajaj v. State of Maharashtra AIR 2009 SC 628.
28. We have given our anxious consideration to rival submissions, perused the material on record and respectfully studied the cited case law.
29. Before embarking upon examination of merits of the case, we would at the outset deal with the objection by the assessee that the Revenue cannot take a different interpretation of Section 10(19A) of the IT Act in respect of assessment year 1978-79, contrary to interpretation which has attained finality qua the same assessee in previous five and subsequent four assessment years. This argument is noted to be rejected for the simple reason that there can be no estoppel against statute. The issue raised is based on phraseology of Section 10 (19A) of the IT Act, which was interpreted in the judgment dated 12.08.1987 in D.B. Income-tax Reference No.41/1980. That judgment of this court was based on the Madhya Pradesh High Court in Bharatchandra Banjdeo’s case, (supra) which distinguished the judgment of Delhi High Court in Mohammad Ali Khan’s case, (supra), holding that the exemption under WT Act is available only in respect to one building, whereas in IT Act it is for the entire palace. The Madhya Pradesh High Court in Bharatchandra Banjdeo’s case, (supra), did not have the benefit of analyzing subsequently delivered judgment of the Supreme Court in Mohammad Ali Khan case, (supra), which upheld the Delhi High Court judgment in Mohammad Ali Khan case, (supra). We have critically examined that judgment and for the reasons, which shall presently spell out herein after, we find no distinction between the issue involved in that matter and the present one. Therefore, despite judgment of this court having attained finality qua the other assessment years, the Revenue can still canvass before this court as to what is the correct interpretation of Section 10(19A) of the IT Act as the assessment in respect of the year in question has yet not attained finality. The judgments cited by the assessee in this behalf are therefore distinguishable. In the judgment of the Supreme Court in All India Council for Technical Education v. Surinder Kumar Dhawan  11 SCC 726, an objection was raised with regard to maintainability of Special Leave to Petition by All India Council for Technical Education against judgment of Punjab and Haryana High Court on the premise that the decision of the Delhi High Court in similar case was not challenged and allowed to become final. Repelling that contention, it was held by the Supreme Court that it is possible that All India Council for Technical Education did not assess or realize the effect or impact of such a decision or likelihood of gradual dilution and may have thought it to be one time measure applicable to only small section with reference to single institution.
30. In State of Maharashtra v. Digambar  4 SCC 683, it was held by the Supreme Court that sometimes, the State Government may not choose to file appeals against certain judgments of the High Court rendered in writ petitions. They are considered as stray cases and not worthwhile invoking the discretionary jurisdiction of the Supreme Court under Article 136 of the Constitution. At other times, it is also possible for the State not to file appeals in some matters on account of improper advice or in negligence or improper conduct of the officers concerned. It is further possible that even where SLPs are filed by the State, they may not be entertained by the Supreme Court either because they are considered as individual cases or because they are considered as cases not involving stakes, which may adversely affect the interest of the State. This therefore cannot be taken as a consideration against State filing SLP or SLPs in other similar matters.
31. In Col. B.J. Akkara v. Government of India –  11 SCC 709, the Supreme Court followed the ratio of the judgment in Digambar’s (supra), and held that the every judgment of the High Court may not be challenged by the State where the financial repercussions are negligible or where the appeal is barred by limitation. It may also be not challenged due to negligence or oversight of the dealing officers or on account of wrong legal advice or on account of non comprehension of the seriousness or magnitude of the issue involved. When however similar matters subsequently crop up and the magnitude of financial implications are realized, the State is not prevented or barred from challenging the subsequent decisions or resisting subsequent writ petitions, even though judgment on a similar issue was allowed to reach finality in the case of others. Of course, the position would be viewed differently, if petitioners plead and prove that the State had adopted a “pick and choose” method only to exclude the petitioners on account of mala-fides or ulterior motives. Neither the principle of res-judicata nor the principle of estoppel is attracted in such a situation. The administrative law of principles of legitimate expectations and fairness in action are also not attracted.
32. In the present case too, we find that correctness of interpretation that is placed on the language of Section 10(19A) of the IT Act is going to have serious repercussions for Revenue as it affects not only the Ruler in the present case but throughout the country wherever such a situation is obtaining or may obtain in future. Mere fact therefore that earlier judgment of this court or that of Madhya Pradesh High Court was allowed to attain finality, would not have an impediment for the Revenue to take correct interpretation of that provision qua the same assessee. There is ample justification for doing so in view of contrary opinion expressed by this Court and Madhya Pradesh High Court in other cases. None of the doctrines, namely, doctrine of res-judicata, the estoppel, the legitimate expectations or fair play in action, would be attracted in such a situation.
33. Adverting again now to the merits, answer to the question posed in this matter would primarily depend on interpretation of Section 10(19A) of the Income Tax Act, 1961, inserted by Amending Act of 1972 where-under the exemption is claimed by/granted to, the Ruler in respect of annual value of any one palace in his occupation declared to be his official residence. It would be therefore instructive to reproduce the provision for the facility of reference:—
“(19A) the Annual value of any one palace in the occupation of a Ruler being a Palace, the annual value whereof was exempt from Income tax before the Commencement of the Constitution (Twenty Sixty Amendment) Act 1971, by virtue of the provisions of the Merged State (Taxation Concessions) Order 1’949 or the Part “B” States (Taxation Concession) Orders, 1950 or as the case may be, the Jammu and Kashmir (Taxation Concessions) Order 1958.
Provided that for the assessment year commencing on 1st day of April, 1972, the annual value of every such palace in the occupation of such Ruler during the relevant previous year shall be exempt from Income Tax.”
34. Even though the learned counsel for the Revenue has argued that latter Division Bench judgment, having been rendered in ignorance of the earlier decision of the Division Bench judgment of this court, should be held to be per incurium, we are not inclined to hold so because there are even otherwise ample number of judgments of other High Courts, taking the contrary view than the one expressed in the Maharaval Laxman Singh case, (supra). We therefore deem it appropriate to consider the matter on all the aspects of law and decide as to what should be correct interpretation of the afore-quoted phraseology in Section 10(19A) of the Act.
35. The judgment of the Delhi High Court in Mohammad Ali Khan’s case (supra), which has been relied on by the Division Bench of this Court in Maharaval Laxmansingh case (supra), has been upheld by the Supreme Court in Mohammad Ali Khan case (supra). The question in that case was whether the assessee-Ruler could claim exemption of tax under Section 5(1)(iii) of the WT Act in respect of building, which was let out to different persons on rent and was not in occupation of the Ruler within the meaning of the said provision. Section 5(1)(iii) of the Act provides that wealth tax shall not be payable by the assessee in respect of the assets not included in the net wealth of the assessee in respect of “any one building in occupation of a Ruler”. The Supreme Court rejected the argument that once a building has been declared as an official residence and a portion of the said building is in occupation of the assessee, then the building would come in the purview of Section 5(1)(iii) of the WT Act, even if substantial portion of the same has been rented out by the assessee to the tenant or for any other purpose. This would make the expression “in the occupation of a Ruler” redundant and those words in the provision would not have its play.
36. The Madhya Pradesh High Court in Bharatchandra Banjdeo’s case, (supra), propounded the law that though on language of subsection (19A) of Section 10 of the Act the legislature restricted exemption to one palace in the occupation of a Ruler, but it could not be contended that legislature further intended splitting of one palace in parts on the basis of occupation or otherwise. Such an interpretation would lead to rejection of the words “in the occupation of a Ruler”, held the Court. This very argument was raised before the Supreme Court in Mohammad Ali Khan, (supra), in the context of similar provision contained in Section 5(1)(iii) of the WT Act. Rejecting the argument, the Supreme Court held that it is the principle of construction that the words of a statute are first understood in their natural, ordinary or popular sense and phrase and sentence are construed according to their grammatical meaning unless that leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. It has been often held that the intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said, as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless, has to be avoided. Obviously, the aforesaid rules of construction are subject to exceptions. Just as it is not permissible to add words or to fill in a gap or lacuna, similarly it is of universal application that effort should be made to give meaning to each and every word used by the Legislature.
37. In J.K. Cotton Spg. & Wvg. Mills Co. Ltd. v. State of U.P. AIR 1961 SC 1170, it was observed by the Supreme Court that “the courts always presume that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect.” The Supreme Court in CIT v. Federation of Indian Chambers of Commerce & Industries  3 SCC 156, while interpreting a case arising out of income tax held that words used by Parliament must be given their ordinary meaning. One should have thought that the correct way to approach this question of interpretation was to give the words used by Parliament their ordinary meaning in the English language and if, consistently with the ordinary meaning, there was a choice between two alternative interpretations, then to prefer the construction that maintains a reasonable and consistent scheme of taxation without distorting the language.
38. The Supreme Court in State of West Bengal v. Kesho Ram Industries Ltd. 10 SCC 201, held “that it is for the legislature to draft a piece of legislation by making the choicest selection of words so as to give expression to its intention. The ordinary rule of interpretation is that the words used by the legislature shall be given such meaning as the legislature has chosen to assign them by coining definitions contained in the interpretation clause and in absence thereof, the words would be given such meaning as they are susceptible of an ordinary parlance, maybe, by having recourse to dictionaries. However, still, the interpretation is the exclusive privilege of the Constitutional Courts and the court embarking upon the task of interpretation would place such meaning on the words as would effectuate the purpose of legislation avoiding absurdity, unreasonableness, incongruity and conflict. As is with the words used, so is with the language employed in drafting a piece of legislation. That interpretation would be preferred which would avoid conflict between two fields of legislation and would rather import homogeneity. It follows as a corollary of the above-said statement that while interpreting tax laws the courts would be guided by the gist of the legislation instead of by the apparent meaning of the words used and the language employed. The courts shall have regard to the object and the scheme of the tax law under consideration and the purpose for which the cess is levied, collected and intended to be used. The courts shall make endeavour to search where the impact of the cess falls. The subject-matter of levy is not to be confused with the method and manner of assessment or realisation.”
39. The Supreme Court in Nasiruddin v. Sita Ram Agarwal –  2 SCC 577, in para 37 of the report, observed that:—
“37. The court’s jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in a given case the Court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot re-write or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well- settled that the real intention of the legislation must be gathered from the language used. It may be true that use of the expression ‘shall or may’ is not decisive for arriving at a finding as to whether statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act. It is also equally well-settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions are mandatory in character.”
40. In Dadi Jagganadhan v. Jammulu Ramulu – AIR 2001 SC 2699, a Constitution Bench of the Supreme Court observed as under:—
“13. …The settled principles of interpretation are that the Court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The Court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly if there is a defect or an omission in the words used by the legislature, the Court would not go to its aid to correct or make up the deficiency. The Court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The Court cannot aid the legislature’s defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there.”
41. In Grasim Industries Ltd. v. Collector of Customs –  4 SCC 297, the Supreme Court held as under:—
“10. No words or expressions used in any statute can be said to be redundant or superfluous. In matters of interpretation one should not concentrate too much on one word and pay too little attention to other words. No provision in the statute and no word in any section can be construed in isolation. Every provision and every word must be looked at generally and in the context in which it is used. It is said that every statute is an edict of the legislature. The elementary principle of interpreting any word while considering a statute is to gather the mens or sententia legis of the legislature. Where the words are clear and there is no obscurity, and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the Court to take upon itself the task of amending or alternating the statutory provisions. Wherever the language is clear the intention of the legislature is to be gathered from the language used. While doing so what has been said in the statute as also what has not been said has to be noted. The construction which requires for its support addition or substitution of words or which results in rejection of words has to be avoided. As stated by the Privy Council in Crawford v. Spooner [(1846) 6 Moore PC 1] “we cannot aid the Legislature’s defective phrasing of an Act, we cannot add or mend and, by construction make up deficiencies which are left there”. In case of an ordinary word there should be no attempt to substitute or paraphrase of general application. Attention should be confined to what is necessary for deciding the particular case. This principle is too well settled and reference to few decisions of this Court would suffice. [See; Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of vested Forests, Palghat and Another – AIR 1990 SC 1747, Union of India and Another v. Deoki Nandan Aggarwal – AIR 1992 SC 96, Institution of Chartered Accountants of India v. Price Waterhouse and Another – (1997) 6 SCC 312, and Harbhajan Singh v. Press Council of India and Others – JT 2002 (3) SC 21].”
42. It is well settled law that the words have to be interpreted in the perspective in which the Legislature has enacted the particular provision of law and the words take colour from the context in which they occur. The Supreme Court has pointed out in Union of India v. Raman Iron Foundry –  3 SCR 556, in para 6 at page 1270, that while interpreting the words, the context and collocation of particular expression have to be considered and the context in which the words occur have an important role in the meaning to be attributed to the particular words occurring in a particular statute.
43. It is thus trite that words in a statute should be so construed so as not to be considered as surplusages or superfluous. Each word, as is well known, must be given its proper meaning. If the aforementioned principle of interpretation of statue is applied, it must be held that parliament made its intention clear so as to cover the entire field including the field of taxation; as otherwise there is absolutely no reason as to why consciously the words, “in the occupation of a Ruler” have been used in Section 10(19A) of the Act. The jurisdiction to interpret a Statute can be invoked only when the same is ambiguous. If it is couched in plain, simple and clear language, the courts have to interpret the same in the way it appears on the face of it.
There is substantial similarity in the language of Section 5(1)(iii) of the WT Act and Section 10(19A) of the IT Act on all relevant aspects except that word “building” has been substituted by “palace” in the latter. In our considered opinion, therefore ratio of the Supreme Court judgment in Mohammad Ali Khan’s, (supra), would squarely apply to the present case as herein also Section 10(19A) of the Act postulates exemption from income-tax on “the annual value of any one palace in the occupation of Ruler”. The occupation of the Ruler in the palace would therefore be necessary precondition for claiming exemption. In cases where the Ruler has not been able to show that the palace declared as his official residence was exclusively in his occupation, he would not be entitled to any exemption. What is exempted is annual value of any one palace and exemption is extended on the condition of the Ruler being in occupation of such palace. The phrase “annual value” under Section 2(2) of the IT Act has been defined to mean its “annual value” as determined under Section 23. Now Section 23 relates to Section 22 of the Act, which deals with the income from house property. Section 23 provides as to how the annual value for the purpose of Section 22 shall be determined. The Ruler is therefore exempt from income tax as per Section 10(19A) on annual value of the income of the palace declared as his official residence only if he is in occupation of such palace and not otherwise.
Contention that since exemption even otherwise is available to the assessee in respect of house under Section 23 of the Act, the legislature could never have intended to give any restricted meaning to the word ‘palace’ so as to limit the exemption to only such part of it which is in his actual possession, cannot be countenanced for the simple reason that a ‘palace’ cannot be taken as synonymous of the ‘house’. A house is house and palace is palace. A house is a compact building whereas a palace may consist of number of buildings. In order to interpret a provision introduced by the legislature by way of amendment, it has to be seen what was the mischief, it wanted to remedy. Since prior to insertion of aforesaid sub-section (19A) of Section 10 of the IT Act, even multiple number of palaces were entitled to exemption. At the time when privileges were withdrawn, privy purses discontinued and titles derecognized, Articles 291 and 362 were omitted and Article 363-A was newly inserted. While, the Parliament restricted the exemption in respect of annual value of only one palace, yet in recognition of the status of the Rulers, the palace occupied by such Ruler was treated as his official residence, which can not be compared with exemption granted to annual letting value of an ordinary tax payer. This argument is therefore liable to be rejected.
There has been much ranker at the bar as to the meaning of “occupation”. We may for that purpose glance through some of the dictionaries to understand the meaning of the word “occupation”. In Black’s Law Dictionary Sixth Edition, the meaning of word “occupation” has been described as “Possession; control; tenure; use. The act or process by which real property is possessed and enjoyed. Where a person exercises physical control over land.” In Chambers 20th Century Dictionary (New Edition 1983) – the word “occupation” has been described to mean, “the act of occupying; possession; the state of being employed or occupied; the time during which a country, etc. is occupied by enemy forces; that which occupies or take up one’s attention; one’s habitual employment, profession, craft, or trade.” In Merriam Webster’s Collegiate Dictionary, Eleventh Edition, the word “occupation” has been described as “the possession, use, or settlement of land” and “the act or process of taking possession of a place or area”. According to chamber’s Twentieth Century Dictionary, ‘occupy’ means “to take possession of to capture; to hold or have in possession” and ‘occupation’ means “the act of occupying; possession”. According to the same dictionary, the word ‘possess’ means “to inhabit, occupy; to have or hold as owner’ and ‘possession’ means “acts state, or fact or possessing or being possessed’. In Corpus Juris Secundum (Vol.67) at page 74 ‘occupation’ has been mentioned thus: “The word may be employed as referring to the act or process of occupying, the State of being occupied, occupancy, or tenure”.
With a view to exploring the true purport and meaning of term “occupation” in contra-distinction to the word “possession”, let us now consider some of the decided cases dealing with this aspect.
44. In Ram Das v. Devindar  3 SCC 684, the Supreme Court while dealing with meaning and distinction of the words “possession” and “occupation” held that they in common parlance may be used interchangeably but in law, the “possession” over a property may amount to holding it as an owner, but to occupy it is to keep possession of by being present in it. In Bimla Devi v. First Additional District Judge  2 SCC 582, the Supreme Court, was dealing with interpretation of Section 21(1)(b) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, which provided that the building must have been in occupation of the landlord for residential purposes which alone would be a conclusive proof of personal necessity. It was contended that the landlord was not in actual occupation of the premises, therefore, explanation (iv) to Section 21(1)(b) of the said Act would not be attracted. Explanation (iv) provided the fact that the building under tenancy is a part of a building, the remaining part thereof is in the occupation of the landlord for residential purposes, shall be conclusive to prove that the building is bona-fidely required by the landlord. In that context, the Supreme Court held that word ‘possession’ or ‘occupation’ may take various forms. A landlord may be serving outside while retaining his possession over a property or a part of the property by either leaving it in-charge of a servant or by putting his household effects or things locked up in the premises. Such an occupation also would be full and complete possession in the eye of law. Even if a house is not let out to anybody but is locked up, it cannot be said that the owner, who is not living there but has kept his household effects, would not be deemed to be in occupation of the same.
45. The Supreme Court in Cantonment Board, Ambala v. Dipak Parkash – AIR 1963 SC 963, while interpreting the phraseology “in the occupation of the Central or any State Government” in Section 99 (2) of the Cantonment Act held that the word “occupation” without anything more, should ordinarily be interpreted as actual occupation. It is difficult to agree that when a person, entitled to actual occupation by reason of his lease permits another to occupy it, then it ceases to be in the actual occupation of the person so permitting. Where the Central or the State Government after obtaining the lease under Section 7 leases it out to any person, it is itself not entitled to actual occupation but has to put the sub-lessee into occupation. In such a case it may be reasonably said that the government has ceased to be in occupation.
46. The Supreme court in a recently delivered judgment in Dunlap India Ltd. v. A.A. Rahna –  5 SCC 778, while interpreting Section 11 (4) (v) of the Kerala Buildings (Lease and Rent Control) Act, 1965, which provided cessation of occupation for more than six months on the ground of eviction held that mere possession of tenanted premise by tenant in lock and key, is sufficient to prove his occupation. The word “occupy” used in Section 11(4)(v) is not synonymous with legal possession in technical sense. It means actual possession of the tenanted building or use thereof for the purpose for which it is let out. If the building is let out for residential purpose and the tenant is shown to be continuously absent from the building for six months, the Court may presume that he has ceased to occupy the building or abandoned it.
47. It is trite that benefit of exemption in a notification or circular or a statutory provision or a rule and incentive thereunder has to be granted on strict construction thereof and if such benefit is admissible on fulfillment of certain condition, it would not be granted unless that condition is satisfied. A provision or notification granting concession/incentive has to be in the first stage interpeted strictly. If on such construction, the subject falls within its scope, then full play has to be given to the same so as to extend the intended benefit. In case of any ambiguity or doubt regarding interpretation of ordinary tax statute, the relevant provision has to be construed in favour of assess. If however, there be any doubt about interpretation of any provision or notification granting exemption/ incentive, the benefit thereof has to go to the Revenue.
48. A constitution bench of the Supreme Court in CCE v. Hari Chand Shri Gopal –  1 SCC 236, while revisiting previous judgments on the subject, held that a provision providing for an exemption, concession or exception, as the case may be, has to be construed strictly with certain exceptions depending upon the setting on which the provision has been placed in the Statute and the object and purpose to be achieved. If exemption is available on complying with certain conditions, the conditions have to be complied with. That decision has been followed in a recent judgment of the Supreme Court in Indian Oil Corpn. Ltd. v. CCE  5 SCC 574, holding that exemption notification relied therein, required that for availing such exemptions two conditions must be satisfied. Unless both the conditions stipulated in the notification are complied with, the appellant was not entitled to exemption.
49. In Novopan India Ltd. v. Collector of Central Excise & Customs – 1994 Supp (3) SCC 606, the Supreme Court held that in case of ambiguity, a taxing statute should be construed in favour of the assessee -assuming that the said principle is good and sound -does not apply to the construction of an exception or an exempting provision; they have to be construed strictly. A person invoking an exception or an exemption provision to relieve him of the tax liability must establish clearly that he is covered by the said provision. In case of doubt or ambiguity, benefit of it must go to the Revenue.
50. Following the judgment in Novopan India Ltd., (supra), the Supreme Court recently in State of Gujarat v. Essar Oil Ltd.  3 SCC 522, held that general principle that in case of ambiguity, a taxing statute should be construed in favour of the assessee, does not apply to the construction of an exception or an exempting provision, as the same have to be construed strictly and that in construing the exemption notification, question of equity does not arise. The exception or exemption provision must be construed strictly. Give it or does not give it at all. An exemption is a standalone process.
51. Even in Mohammad Ali Khan’s case, (supra) referred to above, the Supreme Court observed that in case of taxing statute, one must have regard to the strict letter of the law and if the Revenue satisfies the Court that the case falls strictly in the provisions of law, the subject can be taxed. Such being the position of law, the Ruler cannot be held entitled to exemption of annual value of that part of the palace, which he has let out and has parted with possession thereof in favour of a third party. So long as he continues to occupy the palace, whether by actually utilizing it or by keeping it vacant but retaining its control, it shall be for the purpose of Section 10(19A), supra, deemed to be in his occupation. He shall however disentitle himself of the exemption from income-tax on the annual value of such part of the palace, possession and/or control of which he has parted with in favour of tenant.
52. In our considered opinion, earlier Division Bench judgment in Maharaval Lakshmansingh’s case (supra), in which it was held that under Section 10(19A) of the Income Tax Act, 1961, the annual value of any one palace in the occupation of a Ruler is exempt from tax in computing his total income, lays down correct law and the latter Division Bench judgmnet in H.H. Maharao Bhim Singhji’s case (supra) 79, having not been correctly decided, does not lay down good law. We therefore answer the reference accordingly.
53. Let this matter be placed before the appropriate bench for hearing.
[Citation : 365 ITR 485]