PETITIONER: Mc DOWELL & COMPANY LIMITED Vs. RESPONDENT: THE COMMERCIAL TAX OFFICER DATE OF JUDGMENT17/04/1985 BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) MISRA RANGNATH CHANDRACHUD, <NAME>, <NAME>, E.S. (J) CITATION: 1986 AIR 649 1985 SCR (3) 791 1985 SCC (3) 230 1985 SCALE (1)788 CITATOR INFO : D 1988 SC1824 (12) RF 1990 SC 202 (11) ACT: Concepts of Tax Evasion and Tax Avoidance, difference in-Tax Planning Colorable device within the framework of law cannot be allowed to be a part of Tax Planning. New plea-Constitution of India, 1950-Appeal by Special Leave under Article 136- Supreme <ORG> cannot entertain a plea not taken in <ORG>. Andhra Pradesh General Sales Tax Act, 1947-"Turn over", scope of-Test for determining whether an excise duty is a part of "turn over," under the Sales Tax Act - The incidence of, excise duty being directly relatable to manufacture, validity of the decision In <NAME>'s case reported in  1 SCR 914 reconsidered: HEADNOTE: "Excise duty" as defined in section 2(10) of the A.P. Excise Act, 1968 is leviable on the manufacture of liquor and the manufacturer cannot remove the same from the distillery unless the duty imposed under the Excise Act has been paid. Buyers of Indian liquor from the appellant's distillery obtain distillery passes for release of liquor after making payment of excise duty and present the same at the distillery there upon the bill of sale or invoice is prepared by the distillery showing the price of liquor but excluding excise duty. The appellant's books of account also did not contain any reference to excise duty paid by the purchaser. The appellant, there-ore, paid sales tax under the Andhra Pradesh General Sales Tax Act, 1957 on the basis of turnover which excluded excise duty. This position was not accepted by <ORG> and the matter was contested right upto <ORG>. <ORG> in <ORG>. v. Commercial Tax Officer VIIth Circle, Hyderabad, etc. reported in  1 SCR 914 held that <ORG> were not competent to include in the "turnover" of the appellant, the excise duty which was not charged by it, but was paid directly to <ORG> the buyers of the liquor, inasmuch as the excise duty did not go into the common till of the appellant and did not become a part of the circulating capital. After the judgment of <ORG> Rules 76 and 79(1) of the A.P. Distillery Rules were suitably amended with effect from August 4, 1981. Amended Rule 76(a) provides that "No spirit of liquor" manufactured or stored shall be removed unless the Excise duty specified in rule 6 has been paid by a holder of D-2 licence before such removal and the amended rule 79(1) provides that on payment of the excise duty by the holder of D-2 licence a distillery pass for the removal of spirit fit for human compensation may be granted in favour of any of the named persons therein. The appellant, being a D-2 licence holder was served with a notice, on the basis of the amended provisions, by the respondent proposing to include a sum of Rs. 4,49,09,532.40 representing the excise duty paid directly by buyers of appellants' liquor in the appellants, turnover for a part of the year 1982-83, Thereupon, the appellant again moved <ORG> for quashing the said notice. <ORG> considered the effect of the amended Rules and held that the primary liability to pay excise duty was indisputably of the holder of the D-2 licence. <ORG> dismissed the writ petition on the findings (a) that the turnover related to liquor; and (b) that the excise duty which was payable by the appellant but had by amicable arrangement been paid by the buyer was actually a part of the turnover of the appellant and was, therefore, liable to be so included for determining liability for sales tax. When leave was granted by <ORG> of <ORG> to appeal against the judgment of <ORG>, the correctness of the decision in appellants' case reported in  1 SCR 914, was doubted and the matter was referred to a larger Bench. Dismissing the appeal, the <ORG>, ^ HELD: (Per <NAME>, J. (concurring) 1.1 Much legal sophistry and Judicial exposition both in England and India have gone into the attempt to differentiate the concepts of tax evasion and tax avoidance and to discover the invisible line supposed to exist which distinguishes one from the other. Tax avoidance, it seems, is legal; tax evasion is illegal. Though initially the law was, and law still is, there is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothings to be implied", during the period between the two world wars the theory came to be propounded and developed that it was perfectly open for persons to evade (avoid) income tax if they could do so legally. In the wake of World War II huge profiteering and racketeering became the order of the day, something which persists till today but on a much larger scale. Therefore, the attitude of the entire English <ORG>s towards avoidance of tax perceptibly changed and hardened, The march of the law against Tax avoidance schemes des- 793 cribed as magic performance by lawyer turned magician continued and then came a significant departure from the West-mininister and the Fisher Executors principle in 1982 and finally "the ghost of West-minister" has been exercised in England. Thus, in the very country of its birth, the principle of West-minister has been given a decent burial and in that very country where the phrase "tax avoidance" originated the judicial attitude towards tax avoidance has changed and the smile, cynical or even affectionate though it might have been at one time, has now frozen into a deep frown. The courts are concerning themselves not merely with the genuineness of a transaction, but with the intended effect of it for fiscal purposes. No man now can get away with a tax avoidance project with the mere statement that there is nothing illegal about it. [797 G-H, 798 F, 801 C, 807 <CITATION> ,  AC 395; <ORG> v. Duke of West- minister, [19361 AC 1; Lord <NAME> v. <ORG>,  1 KB 389; <NAME> v. <ORG>,  AC 377: Griffiths v. <ORG>  AC 1; Morgan v. <ORG>,  Chancery 438; <CITATION> ,  Chancery 286; <CITATION> ,  Chancery 651; <NAME> v. <ORG>,  3 All E.R. 136; W.T. Ramsay v. <ORG>, 11982] AC 300: <CITATION> , 1982 STC 30: Furniss v. <NAME>,  1 All E.R. 530; Commissioner of Income tax, <CITATION> ., 1 SCR 10; Commissioner of Income tax. <CITATION> , 72 ITR 603 referred to. 2. The evil consequence of tax avoidance are manifold: (i) there is substantial loss of much needed public revenue particularly in a welfare State like ours; (ii) there is the serious disturbance caused to the economy of the country by the piling up of mountains of blackmoney directly causing inflation; (iii) there is "the large hidden loss" to the community by some of the best brains in the country being involved in the perpetual war waged between the tax avoider and his expert team of advisers, lawyers and accountants on the side and the tax-gathered and his perhaps not so skillful, advisers on the other side; (iv) there is the "sense of injustice and inequality which tax avoidance arouses in the breasts of those who are unwilling or unable to profit by it"; and (v) last but not least is the ethics (to be precise, the lack of it) of transferring the burden of tax liability to the shoulders of the guideless, good citizens from those of the "artful doggers". [808 H, 809 A- C] 3. The proper way to construe a taxing statute, while considering a device to avoid tax, is not to ask whether the provisions should be construed literally or liberally, nor whether the transaction is not unreal and not prohibited by the statute, but whether the transaction is a device to avoid tax, and whether the transaction is such that the judicial process may accord its approval to it. [809 E-F] Wood Polymer Ltd. v. <ORG>, 40 Company Cases 597 referred to. 794 4. It is neither fair nor desirable to expect the legislature to intervene and take care of every device and scheme to avoid taxation. It is upto the <ORG> to take stock to determine the nature of the new and sophisticated legal devices to avoid tax and consider whether the situation created by the devices could be related to the existing legislation with the aid of 'emerging' techniques of inter- pretation, to expose the devices for what they really are and to refuse to give Judicial benediction. [809 G-H 810 A] W.T. Ramsay v. <ORG>,  AC 300; <CITATION> . 1982 STC 30; Furniss v. <NAME>,  I All E.R. 530 quoted with approval. HELD: (Per <NAME>, J.) 1. Tax planning may be legitimate provided lt is within the framework of law, Colourable devices cannot be part of tax planning and it is wrong to encourage or entertain the belief that it is honourable to avoid the payment of tax by resorting to dubious methods. It is the obligation of every citizen to pay the taxes honestly without resorting to subterfuges. [823 H, 824 A] Commissioner of Income tax v. A. Raman & Co. (1968) 67 ITR II SC J Commissioner of Income-tax, Gujarat II v. B.M. Kharwar, (1969) 72 ITR 603 SC; <CITATION> , (1940) 8 ITR 522 (PC); <CITATION> , (1958) 34 ITR 388 ( <CITATION> (1972) 86 ITR 2 (SC) referred to. <NAME> v. I.R. 25 T.C. 107 quoted with approval. 2.1 The incidence of excise duty is directly relatable to manufacture but its collection can be deferred to a later stage as a measure of convenience or expediency. [815 <CITATION>  ECR 90 <CITATION> ,  Suppl. 3 SCR 436; Re. Sea Custom Act, [1964) 3 SCR 787; M/s- Guruswamy & Co. etc. v. State of Mysore & Ors.,  1 SCR 548; <CITATION> .  2 SCR 68; <CITATION> ,  3 SCR 219 referred to. 2.2 On an examination of the provisions of the A.P. Excise Act, the Rules were framed thereunder and the pronouncements of <ORG>, it is clear, that the conclusion of the <ORG> in <ORG>. v. Commercial Tax Officer, Vllth Circle, Hyderabad etc.,  1 SCR 914 at page 921 of  1 SCR, that intending purchasers of the Indian liquors who seek to obtain distillery passes are also legally responsible for payment of the excise duty is too broadly stated. The "duty wag primarily a burden which the 795 manufacturer had to bear and even if the purchasers paid the same under the Distillery Rules, the provisions were merely enabling and did not give rise to any legal responsibility or obligation for meeting the burden. [815 B-D] The change in Rule 76 of the AP Distillery Rules has clearly affirmed the position that liability for payment of excise duty is of the manufacturer and the provisions of rules 80 to 84 do not militate against it. These rules do not detract from the position that payment of excise duty is the primary and exclusive obligation of the manufacturer and if payment be made under a contract or arrangement by any other person it would amount to meeting of the obligation of the manufacturer and nothing more. [815 D-F] 2.3 The definition of "turnover", in section 2(s) of the A.P. General Sales Tax Act, which is to the effect. namely 'the total amount set out in the bill of sale (or if there is no bill of sale, the total amount charged) as the consideration for the sale or purchase of goods (whether such consideration be cash, deferred payment or any other thing or value) Including any sums charged by the dealer for anything done in respect of goods sold at the time of or before the delivery of the goods and any other sums charged by the dealer, whatever be the description, name or object thereof" clearly indicates that the total amount charged as the consideration for the sale is to be taken into account for determining the turnover. Where a bin of sale is issued (and obviously the bill has to state the total amount charged as consideration), the total amount set out therein is to be taken into account. In every transaction of sale, there is bound to be a seller at one end and a buyer at the other and transfer of title in the goods takes place for a consideration. [815 H,816 A-C] 2.4 Excise duty though paid by the purchaser to meet the liability of the appellant, is a part of the consideration for the sale and is includible in the turnover of the appellant. The purchaser has paid the tax because the law asks him to pay it on behalf of the manufacturer. Here, admittedly, the bills issued by the appellant did not include the excise duty; Payment of excise duty is a legal liability of the manufacture, its payment is a condition precedent to the removal of the liquor from the distillery and payment by the purchaser is on account of the manufacturer. According to normal commercial practice, excise duty should have been reflected in the bill either as merged in price or being shown separately. As a fact, in the hands of the buyer the cost of liquor is what is charged by the appellant under its bill together with excise duty which the buyer has directly paid on seller's account. The consideration for the sale is thus the total amount not what is reflected in the bill. [818 C-F] 2.5 True, the excise duty component of the price would not be an addition to the coffers of the dealer, as it would go to reimburse him in respect of the excise duty already paid by him on the manufacture of the goods. But even so, it would be part of the sale price because it forms a component of the consideration for the sale of the goods that the amount representing excise duty would be payable by the purchaser, There is no other manner of liability, statutory or 796 otherwise, under which the purchaser would be liable to pay the amount of excise duty to the dealer. And on this reasoning, it would make no difference whether the amount of excise duty is included in the price changed by the dealer or is shown as a separate item in the bill, The position is not different when under a prior agreement, the legal liability of the manufacturer dealer for payment of excise duty is satisfied by the purchaser by direct payment to the excise authorities or to the State exchequer. [816 G-H, 817 A-D] 2.6 The conclusion reached in the appellants' case in  1 SCR 914 on the second aspect of the matter namely, when the excise duty does not go into the common till of the assessee and it does not become a part of the circulating capital, it does not constitute turnover, is not the decisive test for deter mining whether such duty would constitute "turnover". The relevant consideration is not whether the law permits the incidence of the duty to be passed on to the purchaser but whether there is a prohibition against passing of it. If there is no bar, the incidence would be passed on to the purchaser in accordance with normal commercial practice. [819 A-C 821 <CITATION> ,  FCR 90; <CITATION> ,  Suppl. 3 SCR 436; Re. Sea Customs Act,  3 SCR 787; M/s, Guruswamy & Co. etc. v. State of Mysore & Ors,  1 SCR 548; jullundur <CITATION> .  2 SCR 68; <CITATION> ,  3 SCR 219: referred to. <CITATION> ,  I SCR 276 applied. Paprika Ltd. & Anr. v. <ORG>, []944] All. E.R. 372; Love v, <ORG>  I All E.R. 618 quoted with approval. <CITATION> ,  2 SCR 570, <CITATION> ,  1 SCR 707 discussed and distinguished. 3.A stand which has not been taken in the writ petition before <ORG> cannot be allowed to be taken in <ORG>. Here the contention based on item 26 of the amended First Schedule to the Sales Tax Act that the appellant had already paid tax on the basis of 50 p. in the rupee on the fooling that the consideration for its liquor did not include duty of excise pay able under the Excise Act and the appellant cannot, therefore, be made liable for sales tax on a different footing cannot be sustained. Such a stand had not been taken in the writ petition before <ORG> and there has been no 797 factual examination of the position as to whether the classification indicated is not intended to cover a totally different situation. Further for resolving the dispute as to whether excise duty is a part of the turnover, reference to the Schedule is indeed wholly irrelevant. [820 <CITATION> , 13 STC 98, distinguished. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 570 of 1983.

From the Judgment and Order dated 6.12.1982 of <ORG> in Writ Petition No. 7985/82.

<NAME>, <NAME>, <NAME> and Mrs. <NAME> for the Appellant.

<NAME>, <NAME> and <NAME> for the Respondents.

The following Judgments were delivered CHINNAPPA REDDY, J. While I entirely agree with my brother <NAME> J. in the judgment proposed to be delivered by him, I wish to add a few paragraphs, particularly to supplement what he has said on the fashionable' topic of tax avoidance. My excuse for inflicting this extra opinion is that the ingenious attempts to rationalise and legitimise tax avoidance have always fascinated and amused me and made me wonder how ready the minds are to adapt themselves and discover excuses to dip into the treasury.

The shortest definition of tax avoidance that I have come across is "the art of dodging tax without breaking the law." Much legal sophistry and judicial exposition have gone into the attempt to differentiate the concepts of tax evasion and tax avoidance and to discover the invisible line supposed to exist which distinguishes one from the other. Tax avoidance, it seems, is legal: tax evasion is illegal.

Though initially the law was, and I suppose the law still is, "there is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied", during the period between the two world wars, the theory came to be propounded and developed that it was perfectly open for persons to evade (avoid) income tax if they could do so legally. For some time it looked as if tax avoidance was even viewed with affection. Lord <NAME> in <CITATION> (l) said: ` "My Lords the highest authorities have always recognised that the subject is entitled so to arrange his affairs as not to attract taxes imposed by the Crown so far as he can do so within the law, and that he may legitimately claim the advantage of any expressed term or of any emotions that he can find in his favour in taxing Acts. In so doing he neither comes under liability nor incurs blame."

Lord <NAME> echoing what Lord <NAME> had said observed in Inland Revenue Commissioners v. <NAME> of West Minister(2) follows type filing the prevalent attitude towards tax avoidance at that time:

"Every man is entitled if he can to order his affairs so that the tax attaching under the appropriate Acts is less than if otherwise would be. If he succeeds in ordering them so as to secure this result, then, however, unappreciative the Commissioners of <ORG> or his fellow tax payers may be of his ingenuity. he cannot be compelled to pay on increased tax."

Then came World War II and in its wake huge profiteering and racketeering, something which persists till today, but on a much larger scale. The attitude of the <ORG> towards avoidance of tax perceptibly changed and hardened and in Lord <NAME> v. <ORG>) <NAME>, <NAME>, dealing with the construction of an anti-avoidance section said:

"For years a battle of manoeuvre has been waged between the legislature and those who are minded to throw the (1) [1926] A.C. 395.

(2) [1936] A.C, 1, (3) [1942] I,KB 389.

burden of taxation off their own shoulders on to those Of their fellow subjects. In that battle the legislature has been worsted by the skill, determination and resourcefulness of its opponents of whom the present appellant has not been the least successful. It would not shock us in the least to find that the legislature has determined to put an and to the struggle by imposing the severest penalities. It scarcely lies in the mouth of the tax payer who plays with fire to complain of burnt fingers." Expressing the same sentiment and dissertating on the moral aspects of tax avoidance Lord <NAME> in <NAME> v. <ORG>) said, "My Lords, of recent years much ingenuity has been expended in certain quarters in attempting to devise met hods of disposition of income by which those who were prepared to adopt them might enjoy the benefits of residents in this country while receiving the equivalent of such income without sharing in the appropriate burden of British taxation. Judicial dicta may be cited which point out that, however, elaborate and artificial such methods may be, those who adopt them are 'entitled' to do 60. There is, of course, no doubt that they are within their legal rights but that is no reason why their efforts, or those of the professional gentlemen who assist them in the matter, should be regarded as a commendable exercise of ingenuity or as a discharge of the duties of good citizenship. On the contrary, one result of such methods, if they succeed, is of course to increase pro tanto the load of tax on the shoulders of the great body of good citizens who do not desire or do not know how, to adopt these manoeuvres."

In several cases, Griffith v. <ORG>), Morgan v. <ORG>) <CITATION> (4), Lord Denning repeatedly referred to tax avoidance schemes (1)  A.C. 377.

(2) [1963] A.C. 1.

(3) [1963] Chancery 438.

(4) [1965] Chancery 286.

and described them as magic performance by lawyer-turned- magicians. Lord <NAME>, almost in the same words as Lord <NAME> described a tax avoidance scheme as one 'which smells a little of the lamp" and said ' it is a splendid scheme-it is almost too good to be true. In law quite too good to be true. It won't do." ( <CITATION> (1), Stamp J. In re Western's Settlements observed-

"...The<ORG>e must be some limit to the devices which this Cou<ORG>t ought to countenance in o<ORG>de<ORG> to defeat the fiscal intentions of the legislatu<ORG>e. In my judgment these p<ORG>oposals ove<ORG>step that limit...I am not pu<ORG>suaded with this application <ORG>ep<ORG>esents mo<ORG>e than a cheap exe<ORG>cise in tax avoidance which <ORG> ought not to sanction as distinct f<ORG>om a legitimate avoidance of liability to taxation.

In <NAME> v. <ORG>), Lord <NAME> dealing with a scheme for tax avoidance by forward dividend stripping observed, " .... We seem to have travelled a long way from the general and salutary rule that the subject is not be taxed except by plain words. But I must recognise that plain words are seldom adequate to anticipate and forestall the multiplicity of ingenious schemes which are constantly being devised to evade taxation. <ORG> is very properly determined to prevent this kind of tax evasion and, if the courts find it impossible to give very wide meanings to general phrases, the only alternative may be for <ORG> to do as some other countries have done and introduce legislation of a more sweeping character which will put the ordinary well-intentioned person at much greater risk than is created by a wide interpretation of such provisions as those which we are now considering." (1) [1967] Chancery, 651.

(2) 1971(3) All ER. 135.

"I am inclined to think that the real explanation of these verbal difficulties may be that, in legislation of such extreme complexity as we have here, it is not humanly possible for a draftsman to preserve that consistency in the use of language which we generally look for. Indeed, l sometimes suspect that our normal meticulous methods of statutory construction tend to lead us astray by concentrating too much 1 on verbal niceties and paying too little attention to the provisions read as a whole."

The march of the law against tax avoidance schemes continued and came a significant departure from the West- minister and the <NAME> Executor. principle. In <NAME>.. <NAME> v. <ORG>), <ORG> had to consider a scheme of tax avoidance which consisted of a series or a combination of transactions each of which was individually genuine but the result of all of which was an avoidance of tax. Lord <NAME>, with great force, observed, "Given that a document or transaction is genuine, the court cannot go behind it to some supposed underlying substance. This is the well-known principle of <ORG> v. <NAME> of <NAME>. This is a cardinal principle but it must not be overstated or overextended. While obliging the court to accept documents or transactions, found to be genuine, as such, it does not compel the court to look at a document or a transaction in blinkers, isolated from any context to which it properly belongs. If it can be seen that a document or transaction was intended to have effect as part of a nexus or series of transactions, or as an ingredient of a wider transaction intended as a whole, there is nothing in the doctrine to prevent it being so regarded: to do so is not to prefer form to sub stance, or substance to form. It is the task of the court to ascertain the legal nature of any transaction to which it is sought to attach a tax or a tax consequence and if that emerges from a series or combination of transactions, in tended to operate as such, it is that series or combination which may be regarded. For this there is authority in the (1) 11982] AB 300.

law relating to income tax and capital gains tax: See <NAME> v. <NAME> [1981] A.C. 533 and <ORG> Com missioners v. <NAME> [1980] A.C. 896." "For the commissioners considering a particular case it is wrong and an unnecessary self limitation, to regard themselves as precluded by their own finding that documents or transactions are not "shams", from considering what, as evidenced by the documents themselves or by the manifested intentions of the parties, the relevant transaction is. They are not, under the Westminister doctrine or any other authority, bound to consider individually each separate step in a composite transaction intended to be carried through as a whole."

Later again he observed, ".....For the taxpayers it was said that to accept the revenue's wide contention involved a rejection of accepted and established canons and that, if so general an attack upon schemes for tax avoidance as the revenue suggest is to be validated, that is a matter for <ORG>. The function of the courts is to apply strictly and correctly the legislation which <ORG> has enacted: if the taxpayer escapes the charge, it is for <ORG>, if it disapproves of the result, to close the gap. General principles against tax avoidance are, it was claimed, for <ORG> to lay down. We were referred, at our request, in this connection to the various enactments by which <ORG> has from time to time tried to counter tax avoidance by some general prescription. The most extensive of these is Income and Corporation Taxes Act 1970, sections 460 et seq. We were referred also to well known sections in Australia and New Zealand (Australia, Income Tax Assesment Act 1936 -51, section 260 , New Zealand, Income Tax Act 1976, section 99 , replacing earlier legislation). Further it was pointed out that the capital gains tax legislation (starting with the Finance Act 1965) does not contain any provision corresponding to section 460 . The intention should be deduced therefore, it was said, to leave capital gains tax to be dealt with by "hole and plug" methods: that such schemes as the present could be so dealt with has been con firmed by later legislation as to "value shifting": Capital Gains Tax Act 1979, section 25 et seq. These arguments merit serious consideration. In substance they appealed to <ORG> in the recent case of <ORG> v. <ORG>  30 A.L.R. 353, 354-355, " "I have a full respect for the principles which have been stated but I do not consider that they should exclude the approach for which the <ORG> contends. That does not introduce a new principle: it would be to apply to new and sophisticated legal devices the undoubted power and duty of the courts to determine their nature in law and to relate them to existing legislation. While the techniques of tax avoidance progress and are technically improved, the courts are not obliged to stand still. Such immobility must result either in loss of tax, to the prejudice of other taxpayers or to <ORG>ary congestion or (most likely) to both. To force the courts to adopt, in relation to closely integrated situations, a step by step, dissecting, approach which the par- ties themselves may have negated, would be a denial rather than an affirmation of the true judicial process. In each case the facts must be established, and a legal analysis made: legislation cannot be required or even be desirable to enable the courts to arrive at a conclusion which corresponds with the parties' own intentions."

"The capital gains tax was created to operate in the real world, not that of make-belief.

The significance of <NAME> as a turning point in the interpretation of tax laws in England and the departure from the strings of Westminister were explained in <CITATION> .,(1) where Lord <NAME> said, "It would be disingenuous to suggest, and dangerous (1)  S.T.C. 30 on the part of those who advise on elaborate tax- avoidance schemes to assume, that <NAME>'s case did not mark a significant change in the approach adopted by this <ORG> in its judicial role to a pre-ordained series of transactions (whether or not they include the achievement of a legitimate commercial end) into which there are inserted steps that have no commercial purpose apart from the avoidance of a liability to tax which in the absence of those particular steps would have been payable. The difference is in approach. It does not necessitate the overruling of any earlier decisions of this <ORG>; hut it does involve recognising that Lord <NAME>'s oft-quoted dictum in IRC v. Duke of Westminister(1) "Every man is entitled if he can to order his affairs so as that the tax attaching under the appropriate Acts is less then it otherwise would be", tell us little or nothing as to what methods of ordering one's affairs will be recognised by the courts as effective to lesson the tax what would attach to them if business transactions were conducted in a straight-forward way."

Lord <NAME> said, "First, it is of the utmost importance that the business community (and others, including their advisers) should appreciate, as my noble and learned friend Lord <NAME> has emphasised, that <NAME>'s case marks "a significant change in the approach adopted by this <ORG> in its judicial role" towards tax avoidance schemes. Secondly, it is now crucial when considering any such scheme to take the analysis far enough to determine where the profit, gain or loss is really to be found,"

The winds of change continued to blow and in <NAME> v. Dawson(2) <NAME> was reiterated. Lord <NAME> observed, "The fact that the court accepted that each step in a transaction was a genuine step producing its intended legal (1) [1936] AC. 1(@)19=[1935] All ER. Rep. 259 (at) 267. (2) [1984] 1 Ali E.R. 530, results did not confine the court to considering each step in h. isolation for the purpose of assessing the fiscal results."

He further said, "My Lords, in my opinion the rationale of the new approach is this. In a preplanned tax saving scheme, no distinction is to be drawn for fiscal purposes, because none exists in reality, between (i) a series of steps which are followed through by virtue of an arrangement which falls short of a binding contract, and (ii) a like series of steps which and followed through because the participants are contractually bound to take each step seriatim. In a contractual case the fiscal consequences will naturally fall to be assessed in the light of the contractually agreed results." In the same case Lord <NAME> explained the principle of <NAME> as follows:-

". . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . _ __ The true principle of decision in <NAME> was that the fiscal consequences of a preordained series of transactions, intended to operate as such, are generally to be asertained by considering the result of the series as a whin, and not by dissecting the scheme and considering each individual transaction separately. "

Lord <NAME> in his characteristic style observed, "The law will develop from case to case. Lord <NAME> in <ORG> v. IRC [1981] 1 All ER 865 at 872, [1982] AC 300 at 324 referred to 'the emerging principle' of the law. What has been established with certainty by the <ORG> in <NAME>'s case is that the determination of what does, and what does not, constitute unacceptable tax evasion is a subject suited to development by judicial process. The best chart that we have for the way forward appears to me, with great respect to all engaged on the map-making process, to be the words of Lord <NAME> in IRC v. <ORG> [1982] STC 30 at 32 which my noble and learned friend Lord <NAME> quotes in his speech. These words have space in the law for the principle enunciated by Lord <NAME> in IRC v. Duke of Westminister [1936] AC I at 19, [1935] All ER Rep. 259 at 267 that every man is entitled if he can to order his affairs so as to diminish the burden of tax. The limits within which this principle is to operate remain to be probed and determined judicially. Difficult though the task may be for judges, it is one which is beyond the power of the blunt instrument of legislation. Whatever a statute may provide, it has to be interpreted and applied by the courts; and ultimately it will prove to be this area of judge-made law that our elusive journey's end will be a found. "

Lord <NAME> put it even more forcefully: "The error, if I may venture to use that word, into which the courts below have fallen is that they have looked back to 1936 and not forward from 1982. They do not appear to have appreciated the true significance of the passages in the speeches in <NAME>'s case [1981] 1 All ER 865 at 872-873, 881, [1982] AC 300 at 325, 337 of Lord Wilberforce and Lord <NAME>, and, even more important, of the warnings in the Burmah Oil Case [1982] STC 30 at 32, 39 given by Lord <NAME> and Lord <NAME> in the passages to which my noble and learned friend Lord <NAME> refers and which I will not repeat. It is perhaps worth recalling the warning given, albeit in another content by Lord <NAME>, who himself dissented in the Duke af Westminister's case, in <ORG> v.

<ORG>) ' When these ghosts of the past stand in the path of justice, clanking their mediaeval chains, the proper course for the judge is to pass through them undeterred.' 1936, a bare half century ago, cannot be described as part of the Middle Ages but the ghost of the Duke of <NAME> and of his transaction, be it noted a single and not a composite transaction, with his gardener and with other members of his staff has haunted the ad ministration of this branch of the law for too long. I confess that I had hoped that ghost might have found quietude with the decisions in <NAME> and in Burmah. Unhappily it (1) [1940] 4 All E.R. 20 @ 37=[1941] A.C. I @ 29.

<NAME>

has not. Perhaps the decision of this <ORG> in these appeals , will now suffice as exorcism." Thus the ghost of <NAME> (in the words of Lord <NAME>) has been exercised in England. Should it be allowed to rear its head in India?

I have referred to the English cases at some length, only to show that in the very country of its birth, the principle of Westminister has been given a decent burial and in that very country where the phrase 'tax avoidance' originated the judicial attitude towards tax avoidance has changed and the smile, cynical or even affectionate though it might have been at one time, has now frozen into a deep C frown. The courts are now concerning themselves not merely with the genuineness of a transaction, but with the intended effect of it for fiscal purposes. No one can now get away with a tax avoidance project with the mere statement that there is nothing illegal about it.

Some years ago, a diverting attempt was made by a Correspondent to the London '<ORG>' to defend tax avoidance. He said, "The taxpayer is morally bound to obey the law, but is not bound beyond the law, for apart from the law taxation would be blackmail or racketeering. There is not behind taxing laws, as there is behind laws against crime, an in dependent moral obligation. When therefore the tax-payer has obeyed the law, he had done all that morality requires" He had further said, "It is said that by avoiding a tax he throws a load on to some other taxpayer. But this is not quite accurate, for - the deficiency might be met by reducing expenditure.. is it not a good thing that there should be this last lawful remedy against oppressive taxation by a majority, that human ingenuity can always find a way by which the minority can escape from tyrannical imposts."

The correspondent was answered by another's correspondent who described the former's defence of tax avoidance as 'an amusing attempt to raise the art of tax avoidance to the moral level of political martyrdom and to make <NAME> of our modern tax dodgers'. Nor, may we say, are our tax dodgers <NAME> is on the Dandi March to protest against the Salt Tax.

In Commissioner of Income tax, <CITATION> .,(1) JC Shah, JJ. speaking for himself and <NAME> and Ramaswami, JJ repeating almost verbatim the observations in Westminister and Fishers Executors observed:

"Avoidance of tax liability by 80 arranging commercial affairs that charge of tax is distributed is not prohibited.A taxpayer may resort to a device to divert the income before it accrues or arises to him. Effectiveness of the device depends not upon considerations of morality, but on the Legislative injunction in taking statutes may not, except on period of penalty, be violated, but it may lawfully be cumvented."

The same Judge, speaking for himself, <NAME> and <NAME> in Commissioner of income tax, <CITATION> (2) expressely followed Westminister and observed:

"The taxing authority is entitled and is indeed bound to determine the true legal relation resulting from a transaction. If the parties have chosen to conceal by a device the legal relation, it Is open to the taking authorities to unravel the device and to determine the true character of relationship. But the legal effect of a transaction cannot be displaced by probing into the "substance of the transaction".

We think that time has come for us to depart from the Westminister principle as emphatically as <ORG> have done and to dissociate ourselves from the observations of <NAME>, <NAME> and similar observations made elsewhere. The evil consequences of tax avoidance are manifold. First there is substantial loss of much needed public revenue, particularly in a welfare state like ours. Next there (1) [1968]1 S.C.R 10.

(2) 72 ITR 603.

is the serious disturbance caused to the economy of the country by the piling up of mountains of blackmoney, directly causing inflation. Then there is "the large hidden loss" to the community (as pointed out by Master <NAME> in 18 <ORG>) by some of the best brains in the country being involved in the perpetual war waged between the tax-avoider and his expert team of advisers, lawyers and accountants on one side and the tax-gatherer and his perhaps not so skilful, advisers on the other side. Then again there is the 'sense of injustice and inequality which tax avoidance arouses in the breasts of those who are unwilling or unable to profit by it'. Last but not the least is the ethics (to be precise, the lack of it) of transferring the burden of tax liability to the shoulders of the guideless good citizens from those of the 'artful dodgers'. It may, indeed, be difficult for lesser mortals to attain the state of mind of Mr. Justice <NAME>, who said, "Taxes are what we pay for civilized society. I like to pay taxes. With them I buy civilization." But, surely, it is high time for tho judiciary in India too to part its ways from the principle of <ORG> and the alluring logic of tax avoidance. We now live In a welfare state whose financial needs, if backed by the law, have to be respected and met. We must recognise that there is behind taxation laws as much moral sanction as behind any other welfare legislation and it is a pretence to say that avoidance of taxation is not unethical and that It stands on no less moral plane than honest payment of taxation. In our view, the proper way to construe a taking statute, while considering a device to avoid tax, is not to ask whether the provisions should be construed literally, or liberally, nor whether the transaction is not unreal and not prohibited by the statute, but whether the transaction is a device to avoid tax, and whether the transaction is such that the judicial process may accord its approval to it.A hint of this approach is to be found in the judgment of <ORG> in <ORG> v. <ORG>) where the learned judge refused to accord sanction to the amalgamation of companies as it would lead to avoidance of tax.

It is neither fair nor desirable to expect the legislature to intervene and take care of every device and scheme to avoid taxation. It is upto the Court to take stock to determine the nature of the new and sophisticated legal devices to avoid tax and consider whether the situation created by the devices could be related to the existing legislation with the aid of 'emerging' techniques of interpretation as was done in <NAME>, <ORG> and <NAME>, to expose the devices (1) 40 Company Cases, 597.

for what they really are and to refuse to give judicial benediction.

We agree with <NAME> that the appeal should be dismissed.

<ORG>, J. The appellant company, a licensed manufacturer of Indian liquor at Hyderabad, is in appeal by special leave questioning the dismissal of its writ petition by <ORG>.

Manufacture, sale-wholesale and retail-as also storage and transport of liquor are regulated by the Andhra Pradesh Excise Act, 1968 (' Excise Act ' for short) and the Andhra Pradesh Distillery Rules the Andhra Pradesh Indian Liquor (Storage in Bond) Rules and the Andhra Pradesh Foreign Liquor Rules, and Indian liquor Rules all made under the Excise Act . 'Excise duty' as defined in section 2(10) of the Excise Act is leviable on the manufacture of liquor and the manufacturer cannot remove the same from the distillery unless the duty imposed under the Excise Act has been paid. Buyers of Indian liquor from the appellant's distillery as alleged by it, obtain distillery passes for release of liquor after making payment of excise duty and present the same at the distillery whereupon the bill of sale or invoice is prepared by the distillery showing the price of liquor but excluding the excise duty. The appellant's books of account also did not contain any reference to excise duty paid by the purchaser. The appellant paid Sales Tax payable by it under the Andhra Pradesh General Sales Tax Act, 1957, (' Sales Tax Act ' for short), on the basis of its turnover which excluded excise duty. The Company was assessed to sales tax on the basis of its returns but later the Commercial Tax Officer was of the view that the Company had failed to include the excise duty paid on the liquor sold by it to wholesalers. The taking authority accordingly called upon the Company to show cause why assessments made may not be reopened. The appellant moved <ORG> for quashing of such notice and having failed, carried the matter in appeal to this Court.<ORG> of this Court in <ORG>. v. Commercial Tax Officer, Vll Circle, Hyderabad, etc., (1) (1)  1 S.C.R. 914.

<NAME>

examined the provision of the Excise Act and the Rules made there under as also the provisions of the Sales Tax Act . This Court took the view:

"We hold that intending purchasers of the Indian liquor who seek to obtain distillery passes are also legally responsible for payment of the excise duty which is collected from them by the authorities of the excise department.

This Court then proceeded to determine whether excise duty paid directly to the Excise authorities or deposited directly in <ORG> in respect of Indian liquor by the buyers before - removing the same from the distillery could be said to form part of the taxable turnover of the appellant distillery. Precedents w ere referred to and the Court came to the conclusion that excise duty did not go into the common till of the appellant and did not become a part of the circulating capital. Therefore, the Sales Tax authorities were not competent to include in the turnover of the appellant the excise duty which was not charged by it but was paid directly to the excise authorities by the buyers of the liquor. The appellant, therefore, succeeded before this Court and the notices issued by the Sales Tax authorities were quashed.

The judgment of this Court was delivered on October 25, 1976. Rules 76 and 79 of the Distillery Rules were amended with effect from August 4, 1981. Rule 76(a) now provides: "No spirit or liquor manufactured or stored shall be removed unless the excise duty specified in rule 6 has been paid by a holder of D-2 licence before such removal." It is not disputed that appellant is the holder of a D-2 licence under the law. Amended rule 79 (1) provides:

"76 (1). On payment of the excise duty by the holder of D-2 licence a distillery pass for the removal of spirit fit for human consumption may be granted in favour of any of the following persons only, namely:-

(a) a person holding a licence in the Andhra Pradesh or in other States for sale of spirit by wholesale or retail and when the spirit is to be transported or exported beyond the limits of the district in which the distillery is situ ated to a person holding a permit signed by the Excise Superintendent of the district of destination or an officer of that district authorised in this behalf.

(b) A person holding a permit signed by the Officer of any other State referred to in clause (a) above for the export of such spirit from the Andhra Pradesh into that State.

(c) A person holding a permit signed by an Officer duly authorised in that behalf for export of such spirit to an Union Territory-

(d) A person holding a permit from the Excise Superintendent of any district in Andhra Pradesh or from officer referred to in clause (a) above of any other State to transport or export rectified spirits or wine, to such district or State."

On the basis of the amended provisions, the respondent Officer issued a notice to the appellant proposing to include a sum of Rs.4,49,09,552.40 representing the excise duty paid directly by buyers of appellant's liquor in the appellant's turnover for a part of the year 1982-83. Thereupon, the appellant again moved <ORG> for quashing of the notice. Reliance was placed on the earlier decision of this Court. <ORG> very appropriately felt bound by the decision of this Court and considered the effect of the amended Rules and held that the primary liability to pay excise duty was indisputably of the holder of the D-2 licence. It further found that the turnover related to liquor, excise duty which was payable by the appellant but had by amicable arrangement been paid by the buyer was actually a part of the turnover of the appellant and was, therefore, liable to be so included for determining liability for sales tax. On these findings <ORG> dismissed the writ petition. When leave was granted by <ORG> of this Court to appeal against the Judgment of <ORG>, the correctness of the decision in appellant's case reported in (1977) 1 S.C.R. 914, was doubted and the matter was referred to a larger Bench. That is how the appeal came to be heard by us.

<NAME>

Mr. <NAME>, appearing in support of the appeal at the very commencement of his submissions stated that there was no constitutional question involved in the appeal. He also fairly stated that the vires of the Excise Act and the Rules was not under challenge. Nor was the amendment of Rules in 1981 in dispute.

<ORG> In The Province of Madras v. Messrs. <NAME> & Sons,(1) held:

"There is in theory nothing to prevent <ORG> from imposing a duty of excise on a commodity as soon as it comes into existence, no matter what happens to it afterwards. whether it be sold, consumed, destroyed, or given away.A taking authority will not ordinarily Impose such a duty, because it is much more convenient administratively to collect the duty tax in the case of most of the Indian Excise Acts) when the commodity leaves the factory for the first time, and also because the duty is intended to be an indirect duty which the manufacture or producer is to pass on to the ultimate consumer, which he could not do if the commodity had, for example, been destroyed in the factory itself. It is the fact of manufacture which attracts the duty, even though it may be collected later; .. "

This view has been followed by this Court and the position has been put beyond doubt by a series of decisions. <CITATION> ,(2) it has been observed:

"The Excise duty is primarily a duty on the production or manufacture of goods produced or manufactured within the country. Subject always to the legislative competence of the taking authority, the said tax can be levied at a convenient stage so long as the character of the impost is not lost. The method of collection does not affect the essence of the duty but only relates to the machinery of collection for administrative convenience."

(1) [1942] F.C.R. 90.

(2) [1962] Suppl. 3 S.C.R. 436.

<NAME>

In Re. Sea Customs Act, (1) this Court said: "With great respect, we accept the principles laid down by the said three decisions (1939 F.C.R. 18; 1942 F.C.R. 90 and 1945 F.G.R. 179) in the matter of levy of an excise duty and the machinery for collection thereof."

In <ORG>. v. <ORG> & ors (2) <NAME>, J. (as he then was), spoke for the majority and stated the ratio thus:

"These cases establish that in order to be an excise duty (a) the levy must be upon 'goods' and (b) the taxable event must be the manufacture or production of goods. Further the levy need not be imposed at the stage of production or manufacture but may be imposed later. "

In <ORG> v.

<ORG>, (3) <NAME>, J. after extracting a part of the Judgment in <NAME>'s case (supra) spoke for the <ORG> thus:

"The above statement of law in no way supports the argument that excise duty cannot be collected from per sons who are neither producers nor manufacturers. Its incidence certainly falls directly on the production or manufacture of goods but the method of collection will not affect the essence of the duty."

<CITATION> , (4) this Court restated the position thus:

"Excise duty, it is now well settled, is a tax on articles produced or manufactured in the taxing country, Generally speaking, the tax is on the manufacturer on the producer, yet laws are to be found which impose a duty of excise at stages subsequent to the manufacture or production."

(2) (1964] 3 S.C.R. 787.

(3) [1967] 1 S.C.R. 548.

(4) [1970] 2 S.C.R. 68.

(1) [1976] 3 S.C.R. 219.

Thus, the incidence of excise duty is directly relatable to manufacture but its collection can be deferred to a later stage as a measure of convenience or expediency.

On an examination of the provisions of the Excise Act , the Rules framed thereunder and the pronouncements referred to above,) we are of the view that the conclusion of this <ORG> at page 921 of the Reports that intending purchasers of the Indian liquors who seek to obtain distillery passes are also legally responsible for payment of the excise duty is too broadly stated. The "duty" was primarily a burden which the manufacturer had to bear and even if purchasers paid the same under the Distillery Rules, the provisions were merely enabling and did not give rise to any legal responsibility or obligation for meeting the burden. We do not propose, however, to examine this aspect any further for the change in Rule 76 of the Distillery Rules has clearly affirmed the position that liability for payment of excise duty is of the manufacturer. Provisions of rules 80, 81, 82, 83 and 84 do not militate against the conclusion that the payment of excise duty is a liability exclusively of the manufacturer. In these rules detailed provisions have been made regarding obtaining of distillery pass, correct calculation and full payment of excise duty, the manner of depositing such duty and ultimately issue of the spirit under the pass from the distillery. These rules, therefore, do not detract from the position that payment excise duty is the primary and exclusive obligation of the manufacturer and if- payment be made under a contract or arrangement by any other person it would amount to meeting of the obligation of the manufacturer and nothing more.

It was the stand of the appellant before <ORG> that it makes a condition precedent for the buyer of its finished goods that he (the buyer) pays the excise duty to the excise authorise directly and only on production of the receipted challan, liquor is issued from the distillery by way of sale under the supervision of the excise authorities. In view of such an arrangement, the excise duty paid by the buyer does not become a part of the turnover of the appellant.

'Turnover' is defined in s. 2(s) of the Sales Tax Act to mean "the total amount set out in the bill of sale or if there is no bill of sale, the total amount charged) as the consideration for the sale or purchase of goods (whether such consideration be cash, deferred payment of any other thing or value) including any sums charged by the dealer for anything done in respect of goods sold at the time of or before the delivery of the goods and any other sums charged by the dealer, whatever be the description, name or object thereof."

The definition clearly indicates that the total amount charged as the consideration for the sale is to be taken into account for determining the turnover. Where a bill of sale is Issued (and obviously the bill has to state the total amount charged as consideration), the total amount set out therein is to be taken into account. In every transaction of sale, there is bound to be a seller at one end and a buyer at the other and transfer or title in the goods takes place for a consideration.

<CITATION> , (1) this Court observed:

"The test is, what is the consideration passing from the purchaser to the dealer for the sale of the goods. It is immaterial to enquire as to how the amount of consideration is made up, whether it includes excise duty or sales tax or freight. The only relevant question to ask is as to what is the amount payable by the purchaser to the dealer as consideration for the sale...."

The Court proceeded to say:

"take for example, excise duty payable by a dealer who is a manufacturer. When he sells goods manufactured by him, he always passes on the excise duty to the purchaser. Ordinarily it is not shown as a separate item in the bill, but it is included in the price charged by him. The sale Price in such a case could be the entire price inclusive of excise duty because that would be the consideration payable by the purchaser for the sale of the goods. True, the excise duty component of the price would not be an addition to the coffers of the dealer. as it would go to reimburse him (1) [1979] I S.C.R. 276.

in respect of the excise duty already paid by him on the manufacture of the goods. But even so, it would be part of the sale price because it forms a component of the consideration for the sale of the goods that the amount representing excise duty would be payable by the purchaser. There is no other manner of liability, statutory or other wise, under which the purchaser would be liable to pay the amount of excise duty to the dealer. And on this reasoning, it would make no difference whether the amount of excise duty is included in the price charged by the dealer or is shown as a separate item in the bill."

We would like to add, that the position is not different when under a prior agreement, the legal liability of the manufacturer-dealer for payment of excise duty is satisfied by the purchaser by direct payment to excise authorities or to the state exchequer. In <ORG> v. <ORG>, (1) <ORG> stated:

"Whenever a sale attracts purchase tax, that tax presumably affects the price which the seller who is liable to pay the tax demands but it does not cease to be the price which the buyer has to pay even if the price is expressed as 'X' plus purchase tax."

This Court in Messrs. <CITATION> , (2) quoted this extract with approval and also referred to the following passage in the Judgment of <ORG> in <NAME> v. <ORG> (3):

"Where an article is taxed, whether by purchase tax, customs duty, or excise duty the tax becomes part of the price which ordinarily the buyer will have to pay. The price of an ounce of tobacco is what it is because of the rate of tax, but on a sale there is only one consideration though made up, of cost plus profit plus tax. So if a seller offers goods (1) [1944] All E.R. 372.

(2) [1962] 2 S.C.R. 570.

(3) [1944] 1 All E.R. 618.

<NAME>

for sale, it is for him to quote a price which includes the tax if he desires to pass it on to the buyer. If the buyer agrees to the price, it is not for him to consider how it is made up or whether that seller has included tax or not So far as the purchaser is concerned, he pays for the goods what the seller demands, namely, the price even though it may include tax. That is the whole consideration for the sale and there is no reason why the whole amount paid to the seller by the purchaser should not be treated as the consideration for the sale and included in the turnover. "

Admittedly, the bills issued by the appellant did not include the excise duty. As already found, payment of excise duty is a legal liability of the manufacturer; its payment ii a condition precedent to the removal of the liquor from the distillery and payment by the purchaser is on account of the manufacturer. According to normal commercial practice, excise duty should have been reflected in the bill either as merged in price or being shown separately. As a fact, in the hands of the buyer the cost of liquor is what is charged by the appellant under its bill together with excise duty which the buyer has directly paid on seller's account. The consideration for the sale is thus the total amount and not what is reflected in the bill. We are, therefore, clearly of the opinion that excise duty though paid by the purchaser to meet the liability of the appellant, is a part of the consideration for the sale and is includible in the turnover of the appellant. The purchaser has paid the tax because the law asks him to pay it on behalf of the manufacturer.

Mr. <NAME> in the course of his submission relied on a <ORG> decision of this Court in <NAME> v. The commissioner of Sales Tax. (1) This Court was considering the liability for Sales Tax under the corresponding U.P. Act in respect of a dealer carrying on business at Mandi Anandganj, Baraut in the District of Merrut. The Sales Tax authorities had included in the dealer's purchase turnover 'market fee' and the commission payable to the commission agent operating within the market area for the purpose of computing sales tax. The decision (1)  1 S.CR. 707 turned on the definition of 'turnover of purchase' in the U.P. Act and the provision of the Adhiniyam and the Rules made thereunder. Market fee and commission payable to an agent are very different from excise duty and a very different position emerges in law in regard to them. No support is available from that decision for the appellant's case. We would like to point out that the relevant consideration is not whether the law permits the incidence of the duty to be passed on to the purchaser but whether there is a prohibition against the passing of it. If there is no bar, the incidence would be passed on to the purchaser in accordance with normal commercial practice.

Mr. <NAME> built up an argument in support of the appellant's stand by referring to the amendment to the First Schedule to the Sales Tax Act . The relevant part of the Schedule provides thus :

Item No Description of Point of levy. Rate of tax goods 26. All liquors, other At the point than country liquor of the first sale 2 (but including in the State. Vodka) (1026) (a) not covered by 3 (50 paise) item (b) below in the rupee, (b) Where the 3 (25 paise) consideration for in the rupee. the sale or purchase of liquor includes the duties of excise payable under the Andhra Pradesh Excise Act, 1968.

Apparently this amendment was brought about after the Judgment of this Court in the appellant's appeal in 1976 and the position has been further altered by amendment in 1984. Sale of liquor has now been made exigible to tax at every point other than the point of last sale in the State. The argument advanced before this Court is that the appellant had already paid tax on the basis of 50p. in the rupee on the footing that the consideration for sale of its liquor did not include duty of excise payable under the Excise Act and the appellant cannot, therefore, be made liable for sales tax on a different footing. This contention too has no force. Such a stand had not been taken in the writ petition before <ORG> and there has been no factual examination of the position as to whether the classification indicated is not intended to cover a totally different situation. For resolving the dispute as to whether excise duty is a part of the turnover, reference to the Schedule ii indeed wholly irrelevant.

Mr. <NAME> relied heavily on the observations of <NAME>, J. (as he then was) speaking for the <ORG> in the case of <CITATION> , (1) where it was said:

"It was pointed out by this <ORG> (in 12 STC 476) that the word 'price' in so far as the purchaser is concerned includes the tax also, and that in laws dealing with sales-tax, turnover has, in England and America also, been held to include the tax. The reason for such inclusion is stated to be that dealer who realises the tax does not hand it over forth with to Government but keeps it with him, and turns it over in his business before the parts with it. Thus, the tax becomes, for the time being, a part of the circulating capital of the tradesman, and is turned over in business. Again it was said that the price paid by the purchaser was not so much money for the article plus tax but a composite sum. Therefore, in calculating the total turnover, there is nothing wrong in treating the tax as part of the turnover, because 'turnover' means the amount of money which is turned over in the business."

According to Mr. <NAME> the excise duty had never come into the hands of the appellant and the Company had no occasion or opportunity to turn it over in its hands, and, therefore, the same could never be considered as a part of its turnover. The obser-

(1) 13 S.T.C. 98.

vations made by this Court were in a very different setting and what was being considered was whether the additional tax levied under the Madras Act formed a part of the turnover. If we accept the observations of <NAME>, J. as laying down the test for general application, it would be very prejudical to the <ORG> as between the seller and the buyer, by special arrangement, a part of what ordinarily would constitute consideration proper could even be kept out and the turnover could be reduced and tax liability avoided. We are of the view that the conclusion reached in the appellant's case in (1977) 1 S.C.R. 914 on the second aspect of the matter, namely, when the excise duty does not go into the common till of the assesses and it does not become a part of the circulating capital, it does not constitute turnover, is not the decisive test for determining whether such duty would constitute turnover.

A further contention was advanced by Mr. <NAME> as his last submission that it is open to every one to so arrange his affairs as to reduce the brunt of taxation to the minimum and such a process does not constitute tax evasion; nor does it carry any ignominy. In support of this submission he relied on the observations of <NAME>, J. speaking for this Court in <CITATION> .,(1) where it was said:

"The law does not oblige a trader to make the maximum profit that he. can out of his trading transactions. Income which accrues to a trader is taxable in his hands: income which he could have, but has not earned, is not made taxable as income accrues to him . Avoidance of tax liability by so arranging commercial affairs that charge of tax is distributed is not prohibited.A taxpayer may resort to a device to divert the income before it accrues or arises to him. Effectiveness of the device depends not upon considerations of morality, but on the operation of the Income tax Act. Legislative injunction in taxing statutes may not except on peril of penalty, by violated, but may lawfully be circumvented."

Support was also sought from the observations of the same learned Judge (as he then was) in the case of Commissioner of Income-

(1) [1968] 67 I.T.R. 11.

tax <CITATION> .(1) After quoting a passage from the judgment of <ORG> in the case of <CITATION> tax (2) this Court stated:

"The taxing authority is entitled and is indeed bound to determine the true legal relation resulting from a trans action. If the parties have chosen to conceal by a device the legal relation, it open to the taxing authorities to unravel the device and to determine the true character of the relationship But the legal effect of a transaction cannot be displaced by probing into the substance of the transaction.

<CITATION> tax and Excise Profits Tax Bombay (3) this Court observed:

"Every person is entitled so to arrange his affairs as to avoid taxation but the arrangement must be real and genuine and not a sham or make-believe,..."

<ORG> in the case of Commissioner of Income tax v. <NAME> (4) said:

"Tax avoidance postulates that the assessee is in receipt of amount which is really and in truth his income liable to tax but on which he avoids payment of tax by some artifice or device. Such artifice or device may apparently show the income as accruing to another person, at the same time making it available for use and enjoyment to the assessee as in a case falling within section 44D or mask the true character of the income by disguising it as a capital receipt as in a case falling within section 44E or assume diverse other forms .... But there must be some artifice or device enabling the assessee to avoid payment of tax on what is really and in truth his income. If the assessee parts with his income producing asset, so that the right to (1)  72 I.T.R. 603.

(2) [1940] 8 I.T.R. 522.

(3) [1958] 34 I.T.R. 888.

(4) [1968] 69 I.T.R. 186.

receive income arising from the asset which theretofore belonged to the assessee is transferred to and vested in some other person, there is no avoidance of tax liability: no part of the income from the asset goes into the hands of the assessee in the shape of income or under any guise.-' This decision has been affirmed by this Court in <CITATION> .(1) We may also recall the observations of Viscount Simon in Latilla v. I. R. (2) "Of recent years much ingenuity has been expended in certain quarters in attempting to device methods of deposition of income by which those who were prepared to adopt them might enjoy the benefits of residence in this country while receiving the equivalent of such incomes, without sharing in the appropriate burden of British taxation. Judicial dicta may be cited which point out that, however elaborate and artificial such methods may be, those who adopt them are "entitled" to do so. There is, of course, no doubt that they are within their legal rights, but that is no reason why their efforts, or those of the professional gentlemen who assist them in the matter, should be regarded as a commendable exercise of ingenuity or as a discharge of the duties of good citizenship. On the contrary one result of such methods, if they succeed, is of course to increase pro tento the load of tax on the shoulders of the great body of good citizens who do not desire, or do not know how, to adopt these manoeuvres. Another consequence is that the <ORG> has made amendments to our Income Tax Code which aim at nullifying the affectiveness of such schemes."

Tax planning may be legitimate provided it is within the framework of law. Colourable devices cannot be part of tax planning and it is wrong to encourage or entertain the belief that it is honourable to avoid the payment of tax by (2) [1972] 86 I.T.R. 2 (3) 25 T.C. 107.

resorting to dubious methods. It is the obligation of every citizen to pay the taxes honestly without resorting to subterfuges.

On this aspect one of us, <NAME>, <NAME> has proposed separate and detailed opinion with which we agree.

In our view, therefore, there is no merit in the appeal and the same is liable to be dismissed with costs. Hearing fee is assessed at Rs. 5,000. We would like to add that now that a clear picture of the situation has emerged the State of Andhra Pradesh should relationalise the law on the subject, if necessary, by making other a appropriate amendments.

While granting leave and allowing stay of proceedings, this Court had directed that bank guarantee be furnished for the tax to the satisfaction of the assessing authority and in the event of the respondent succeeding in the appeal, the appellant do pay interest at 12% per annum. The respondent may now proceed to collect the dues of the <ORG> in accordance with law.

S.R. Appeal dismissed.


PETITIONER: <NAME> Vs. RESPONDENT: THE STATE OF U.P. & ORS. DATE OF JUDGMENT25/03/1974 BENCH: <NAME>, HANS RAJ BENCH: <NAME>, HANS RAJ GOSWAMI, P.K. CITATION: 1974 AIR 1317 CITATOR INFO : RF 1976 SC2547 (16,17) R 1979 SC 684 (7) R 1980 SC 42 (20) R 1984 SC 636 (11) ACT: Constitution of India, Art. 311(2)-- Reversion from an officiating higher post to substantive post--It attracts Art. 311(2) HEADNOTE: The appellant who was Assistant General Manager in <ORG> was appointed as officiating General Manager in the same department. During the period of his officiating appointment he was reverted. At the time of the appellant's reversion there were two letters from <ORG> making certain allegations against the appellant. These letters show that the authorities concerned came to the conclusion that pending the enquiry, the appellant should not be allowed to officiate in a higher post. His writ petition challenging the order of reversion was dismissed by <ORG>. It was contended in this court that the order of reversion was by way of punishment and since it had been made without complying with the requirements of Art. 311 of the Constitution the same was liable to be quashed. Dismissing the appeal, HELD :-The test for attracting Art. 311(2) of the Constitution is whether the misconduct or negligence is a mere motive for the order of reversion or termination of service of the temporary employee. The form of the order however, is not conclusive of its true nature. The entirety of circumstances preceding or attendant on the impugned order must be examined by the court and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order. [757E] A perusal of the order showed that it contained no adverse rem-,irks against the appellant nor could it be said that any stigma attached to the.. appellant because of that order. The post of General Manager which was held by the appellant was only in an officiating capacity. The appellant had no vested right to retain that post. In case the authorities concerned came to the conclusion that the appellant should not be allowed to retain the post of which he was officiating they could pass an order for his reversion without complying with the requirements of Art. 311 provided the order was not by way of punishment. [756H] <CITATION> ,  S.C.R. 828. <CITATION> etc. etc.,  3 S.C.R. 660 and <CITATION> ,  2 S.C.R. 191, followed. <CITATION> ,  3 S.C.R. 234, referred to. It is well settled that even though misconduct, negligence, inefficiency or other disqualifications may be the motive or the inducing factor which influence the <ORG> to take action under the express or implied terms of the contract of employment or under the statutory rule. nevertheless if a right exists, under the contract or the rules to terminate the services the motive operating on the mind of the <ORG> is wholly immaterial. The same rule would hold good if the order passed is not for termination of service but for reversion of a <ORG> servant from a higher post to a lower post which he holds in a substantive capacity. [758H] <CITATION> ,  3 S.C.R. 603, referred to. JUDGMENT:

CIVIL APPELLANT JURISDICTION : Civil Appeal No. 1062 of 1971.

Appeal by Special Leave from the Judgment and Order dated the 12th January, 1971 of <ORG> (<ORG>) at Lucknow in Writ Petition No. 1073 of 1968.

<NAME>, <NAME> and <NAME>, for the appellant.

<NAME>, and <NAME> for the respondents. The Judgment of the Court was delivered by <NAME>, J.-This appeal by special leave is directed against a <ORG> decision of <ORG> whereby petition under article 226 of the Constitution of India filed by the appellant was dismissed.

The appellant was appointed Traffic Manager in the transport organization of the State of Uttar Pradesh on July 21, 1948. The office of Traffic Manager was subsequently designated as Assistant General Manager and the appellant continued to work as such. On December 1, 1955 the appellant was confirmed as Assistant General Manager with effect from April 1, 1955. On July 5, 1963 the appellant was appointed Officiating General Manager in the Gorakhpur region of <ORG>. The appellant continued to officiate as General Manager of Government Roadways till September 7, 1967 when he was reverted to the post of Assistant General Manager. The appellant filed writ petition No. 3167 of 1967 in <ORG> challenging the order of his reversion but the same was summarily dismissed by <ORG> of that court as per order dated September 12, 1967. Representation was made by the appellant against the, order of his reversion but the representation too was rejected by the State Government as per letter dated October 7, 1968. The writ petition which has given rise to this appeal was thereafter filed by the petitioner praying for quashing the order by which he had been reverted from the post of Officiating General Manager to that of Assistant General Manager as well as the orders whereby his representation bad been rejected.

A number of grounds were set out in the petition for assailing the impugned orders, but at the hearing of the appeal only one ground has been pressed and it is only that ground with which we are concerned. According to the appellant, the order of his reversion was by way of punishment and as it bad been made without complying with requirements of article 311 of the Constitution, the same was liable to be quashed.

The petition was resisted by the <ORG> of Uttar Pradesh and the affidavit of <NAME>, Deputy Secretary to the Government in <ORG> was filed in opposition to the petition. Objection was taken that the, present petition was barred because of the dismissal of the earlier petition. On merits it was stated that the appellant was merely officiating as a General Manager and had no right to that post. According to the respondent- <ORG>, the appellant could be reverted to his substantive post of Assistant General Manager without the <ORG> taking any disciplinary action or assigning any reason. When the petition came up for hearing before a single Judge the learned Judge referred the matter to a larger Bench. Ultimately, the matter was heard by a Full Bench of <ORG>. The learned Judges held that the present petition was barred because of the dismissal of the appellant's earlier petition. On merits also, the learned Judges did not accept the contention advanced on behalf of the appellant and held that as he was only officiating as General Manager, he did not have any lien on that post. The reversion was held to be not by way of punishment. The Government, in the opinion of <ORG>, was entitled in exercise of its, power to revert a person who was officiating in a higher post. Contention was also raised that the order of reversion was violative of the principles of natural justice but this contention was repelled. In the result the petition of the appellant was dismissed. In appeal before us Mr. <NAME> on behalf of the appellant has argued. that as the previous petition No. 3167 of 1967 filed by the appellant had been dismissed summarily by means of a non-speaking order, it cannot be said that the dismissal of that petition was on merits. As such, according to the learned counsel, the present petition was not barred because of the dismissal of the previous petition. The second contention of Mr., <NAME> is that the reversion of the appellant from the post of Officiating General Manager to that of Assistant General Manager was by way of punishment and as the same had been ordered without complying with article 311 of the Constitution, the order of reversion was liable to be quashed. The above contentions have been controverted by Mr. <NAME> on behalf of the respondent- <ORG>. It is, in our opinion, not necessary to go into the first contention of Mr. <NAME> because we find that the order of reversion of the appellant cannot be said to have been made by way of punishment.

The material part of the order of reversion reads as under "OFFICE OF THE TRANSPORT COMMISSIONER UTTAR PRADESH No. 714/PAVS/67 Dated Lucknow, September 7, ORDER In pursuance of <ORG>'s instructions contained is Deputy Secretary, <ORG>'s D.O. letter No. 13060 S/XXXA-10/18/M/59, dated September 5, 1967 the following reversions, transfers and postings are hereby ordered (1) <NAME>, officiating General Manager, U.P. <ORG> Road-ways, Aligarh, is reverted to his substantive post of Assistant General Manager, and posted at Luck- now as Assistant General Manager (Rural) vice <NAME> transferred."

Perusal of the above order shows that it contains no adverse remarks against the appellant, nor can it be said that any stigma attaches to the appellant because of that order. At the time the above order was made the substantive rank of the appellant was that of Assistant General Manager. The post of General Manager which was held by the appellant was only in an officiating capacity. The appellant had no vested right to retain that post. In case the authorities concerned came to the conclusion that the appellant should not be allowed to retain the post in which he was officiating, they could pass an order for his reversion without complying with the requirements of article 311 provided the order was not by way of punishment.

Appointment to a post on an officiating basis is, from the nature of employment, itself of a transitory character and in the absence of any contract or specific rule regulating the conditions of service to the contrary, the implied term of such an appointment is that it is terminable at any time. The <ORG> servant so appointed acquires no right to the post. But if the order entails or provides for forfeiture of his pay or allowance or the loss of his seniority in the substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstance may indicate that though, in form, the <ORG> had purported to exercise its undoubted right to terminate the employment, in truth and reality, the termination was by way of penalty [see <CITATION> (1) and <CITATION> , etc. etc.(2)]. Officiating and temporary <ORG> servants are also entitled to the protection of article 311 as permanent <ORG> servants if the <ORG> takes action against them by meting out one of the punishments, i.e. dismissal, removal or reduction in rank [see <CITATION> , (supra), <CITATION> (3) and <CITATION> . (4) ].

The test for attracting article 311(2) of the Constitution is whether the misconduct or negligence is a mere motive for-the order of reversion or termination of service or whether it is the very foundation of the order of termination of service of the temporary employee. The form of the order, however, is not conclusive of its true nature. The entirety of circumstances preceding or attendant on the impugned order must be examined by the court and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order [see <CITATION> (5)]. In the case of <CITATION> (6) this Court enunciated the following propositions which have to be borne in mind :

(1) The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Art. 311 of the Constitution.

(2) The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.

(3) If the order visits the public servant with any evil consequences or casts an aspersion against his (1) [1958] SCR 828. (2) [1972] 3 SCR 660.

(2) [1964] 5 SCR 190. (4) [1971] 2 SCR 890.

(5) [1971] 2 SCR 191. (6) [1968] 3 SCR 234.

character or integrity, it must be considered to be one by way of punishment, no matter whether he was a mere probationer or a temporary servant.

(4) An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Art. 311 of the Constitution. (5) If there be a full-scale departmental enquiry envisaged by Art. 311 i.e. an Enquiry Officer is appointed, a charge sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article."

Keeping in view the principles enunciated above, we have looked at the facts of the case and are not satisfied that the order of reversion of the appellant was by way of punishment. It has already been mentioned above that no aspersion was cast on the appellant in the order of reversion and as a result of that order no stigma attaches to his name. The appellant was merely officiating in a higher post and the impugned order had the effect of reverting him to his substantive post. The attendant circumstances to which our attention has been invited with a view to show that the order of reversion was by way of punishment are two letters dated July 12, 1967. One of these letters was addressed by the Deputy Secretary, <ORG> to the Director of <ORG> wherein reference was made to the report of the officers of <ORG>. It was requested that an open enquiry might be made into the allegations of involvement of the appellant in a matter relating to the supply of non-genuine and substandard motor parts by a Delhi dealer. In the other letter addressed to the Secretary to Uttar Pradesh <ORG>, <ORG> a request was made by the Deputy Secretary, <ORG> that in case the appellant was not confirmed on the post of General Manager, he might be reverted since an enquiry made by the <ORG> into the allegations of corruption against the appellant had revealed that there was substance in those allegations. The above letters would show that the authorities concerned came to the conclusion that, pending the holding of an open enquiry into the charges of corruption against the appellant, he should not be allowed to officiate in a higher post. It cannot, in our opinion, be inferred therefrom that the reversion of the appellant was by way of punishment. All that can be said is that the contemplated enquiry into the charges of corruption against the appellant provided the motive for the reversion of the appellant. The existence of such a motive cannot, in our opinion, vitiate the order for the reversion of the appellant. It may be taken to be well settled that even though misconduct, negligence, inefficiency or other disqualifications may be the motive or the inducing factor which influence the <ORG> to take action under the express or implied terms of the contract of employment or under the statutory rule, nevertheless if a right exists, under the contract or the rules to terminate the services the motive operating on the mind of the <ORG> is wholly immaterial [see <CITATION> (l).]. The same rule would hold good if the order passed is not for termination of service but for reversion of a <ORG> servant from a higher post to a lower post which he holds in a substantive capacity.

Application was filed during the pendency of the appeal on behalf of the appellant that this Court might take into account additional documents. These documents were in existence at the time the appellant filed the petition in <ORG>. The petition in <ORG> remained pending for more than a year. We are not impressed by the plea taken on behalf of the appellant that he could not trace these documents with due diligence and has been able to trace them now. The documents in question are not of such a nature as are needed to enable us to pronounce this judgment. In the circumstances, the application filed by the appellant for taking on record additional documents in appeal is rejected.

The appeal fails and is dismissed with costs. <NAME>

Appeal dismissed.

(1) [1969] 3 SCR 603.


JUDGMENT <NAME>, J.

1. At the instance of the <ORG>, the <ORG> referred the following two questions, for the opinion of this <ORG>, under s. 256(1) of the IT Act, 1961, hereinafter referred to as the 'Act'.

"1. Whether, on the facts and in the circumstances of the case, the <ORG> was justified in setting aside the order under s. 263 of the IT Act, 1961, passed by the <ORG> in relation to asst. yr. 1974-75 in the assessee's case ?

2. Whether the satisfaction of the <ORG> as to the erroneous and prejudicial nature of the order passed by the <ORG> as contemplated in s. 263 of the IT Act, 1961, is confined only to the issue of notice to the assessee under that section, or should it be a must for purpose of passing an order under the said section, as has been held by the <ORG> ?

2. The assessee is carrying on moneylending business. For the asst. yr. 1974-75, the <ORG> determined the assessee's total income at Rs. 59,050 by his order, dt. 30th September, 1976. Later the <ORG> (<ORG>.) called for the records and scrutinised the order along with the connected records in the case of <ORG>. On such scrutiny, he noticed that the said <ORG> owed a sum of rupees one lakh to the assessee as disclosed in the details given by it, but whereas the assessee herein had not disclosed this amount in her balance sheet. The <ORG> held that the order passed by the <ORG>, without verifying this investment, was erroneous insofar as it was prejudicial to the interests of the <ORG>. The <ORG> issued a notice under s. 263 of the Act to the assessee requiring her to show cause as to why this sum of Rupees one lakh should not be treated as her undisclosed income.

3. Before the <ORG>, the assessee submitted that the sum of Rupees one lakh was advanced to <ORG>, Coimbatore, on 7th January, 1974, for the purpose of purchasing the lease right of the film "Vellikizhamai Viradham" that before the production of the film, the assessee sold her lease rights to <ORG>, Madras-34, for a sum of Rs. 1.30 lakhs, that the said <ORG> paid a sum of Rs. 25,000 and the remaining unpaid amount of Rs. 1.05 lakhs appeared in the assessee's balance sheet, as on 31st January, 1974, and that, therefore, there was nothing due from the said <ORG>. On considering the explanation offered by the assessee, the <ORG> felt that as the sum of Rupees one lakh has been shown as a debt owned by the said <ORG>, the <ORG> should be directed to make fresh assessment after obtaining necessary clarification from the assessee in this regard. Accordingly the <ORG> set aside the assessment and gave a direction to the <ORG> in this matter.

4. Aggrieved, the assessee filed an appeal before the <ORG>, contending that in the absence of any definite conclusion arrived at by the <ORG> as to the erroneous or prejudicial nature of the assessment order passed by the <ORG>, he should not have set aside the assessment, thereby giving a direction to the <ORG> to make fresh assessment, and that, therefore, the order passed by the <ORG> under s. 263 of the Act was without jurisdiction. The <ORG> held that the <ORG> has merely stated that it would be fair and reasonable to have the assessment set aside and give direction to the <ORG> to make fresh assessment, after getting necessary clarification and he has not found that the order passed by the <ORG> was prejudicial to the interest of the <ORG>. Therefore, the <ORG> held that the order passed by the <ORG> under s. 263 of the Act, was without jurisdiction.

5. The learned standing counsel appearing for the Department submitted that on a scrutiny of the order passed by the <ORG> along with the connected records, the <ORG> found that in the balance sheet belonging to the assessee, a sum of Rupees one lakh due from M/s. Dhandayuthapani Films was not shown. Therefore, the <ORG> came to the conclusion that there is undisclosed income of Rupees one lakh in the case of the assessee. The fact remains that the <ORG> has not conducted enquiry with regard to the omission of Rupees one lakh due from M/s. Dhandayathupani Films. Therefore, in order to verify the account and pass appropriate order, the <ORG> thought it fit to set aside the order made by the <ORG> and directed him to re-do the assessment on this aspect, after getting clarification from the assessee. Hence, it cannot be said that the order passed by the <ORG> was without any finding as to whether the order passed by the <ORG> is erroneous and prejudicial to the interest of the <ORG>. Therefore, according to the learned standing counsel, there is no infirmity in the order passed by the <ORG> under s. 263 of the Act.

6. We have heard the learned standing counsel appearing for the <ORG> and perused the records carefully.

7. A scrutiny of the income-tax records of the assessee as well as the other connected file of M/s. Dhandayuthapani Films disclosed the fact that the latter owed a sum of Rupees one lakh to the assessee as disclosed in the details filed by it. This investment as advance of Rupees one lakh did not find a place in the balance sheet and other details filed by the assessee. This sum of Rupees one lakh advanced on 7th January, 1974 appears to have been escaped from the notice of the <ORG>, according to the <ORG>. Therefore, completion of the assessment for 1974-75, without verifying this investment, which has been omitted to be shown by the assessee was considered as erroneous insofar as it is prejudicial to the interest of the <ORG>. Hence the jurisdiction under s. 263 of the Act was invoked.

8. The assessee submitted before the <ORG> that a sum of Rupees one lakh was, in fact, advanced to <ORG>, Coimbatore, on 7th January, 1974, for the purpose of purchasing the lease rights of the Film "Vellikizhamai Viradham", which was then under production. However, before the production was completed, the assessee instructed the producer <ORG> to sell the lease rights to <ORG>, Madras-34, for a sum of Rs. 1.30 lakhs. The producer <ORG> accordingly sold the lease rights to the <ORG> as per the assessee's instruction. A sum of Rs. 25,000 was paid by the <ORG> to the assessee and the balance remaining unpaid, viz., Rs. 1,05,000 has been admitted by the assessee in her balance sheet, as on 31st March, 1974. Hence, it is clear that there is no escapement of income, inasmuch as the investment of Rupees one lakh has been admitted by the assessee not in the name of <ORG>, but in the name of <ORG>. <ORG>, Coimbatore, being a producer is in the practice of making adjustments in respect of advances received from distributors after the picture is released. As "Vellikizhamai Viradham" was released only in the accounting period, relevant for 1975-76 assessment in the case of <ORG>, this adjustments has been made only in the accounting period 1st April, 1974 to 31st March, 1975. This is the reason for the omission on the part of the assessee to admit this investment and on the part of the producer to show this amount under distributor's advance outstanding as on 31st March, 1974. This explanation offered by the assessee was accepted by the <ORG>. When the explanation offered by the assessee was accepted by the <ORG> with regard to the alleged undisclosed income of Rupees one lakh, then there is no error in the order passed by the <ORG> in the case of the assessee in the asst. yr. 1974-75. Therefore, in the present case, after the enquiry, the <ORG> has not given any categorical finding that the order passed by the <ORG> on this aspect was erroneous and prejudicial to the interest of the <ORG>. On the other hand, the <ORG> set aside the order passed by the <ORG> on the ground that verification of account is needed, with a clarification of the assessee. This cannot be a ground for invoking jurisdiction under s. 263 of the Act. Therefore, on the factual finding, we consider that the order passed by the <ORG> in holding that the <ORG> has no jurisdiction to invoke the provisions of s. 263 of the Act is in order. Accordingly, we answer the question referred to us in the affirmative and against the <ORG>. No costs.