P.S. DHILLON, J.M. Order assessee has preferred this appeal against order dt. 3rd May, 1 9 8 3 of Dr. N.R. Sivaswamy, CIT(A), who dismissed appeal against order dt. 30th March, 1 9 81 of Shri E. Hariharan, Fourth ITO. 2 . relevant facts in brief are that assessee is individual. previous year relevant for asst. yr. 1 9 68-6 9 ended on 31st March, 1 9 68. original assessment was completed on 1 9 th Feb., 1 9 6 9 . However, later on, ITO had information that assessee as director of Saroja Mills was freely using cars of company for his personal purposes and value of such benefit or perquisite was not disclosed or admitted in original assessment. Therefore, ITO reopened assessment after getting sanction of CIT on 15th Oct., 1 9 76. Consequently, ITO issued notice on assessee under s. 147 r/w s. 148 of IT Act, 1 9 61 ('the Act') to show cause that why reassessment should not be made on assessee being income escaped to be assessed in original assessment. In compliance with notice assessee filed return and therein pleaded that there was no benefit or perquisite assessable in hands of assessee and in particular, there should be no addition on account of personal use of cars by assessee in view of fact that in case of company for asst. yr. 1 9 68-6 9 , such perquisites were added under s. 40(c) of Act vide order dt. 25th Sept., 1 9 71 and amount relating to assessee was at Rs. 9 ,0 9 7 which was included in company's assessment. Accordingly, ITO held that contention of representative of assessee that there was no benefit or perquisite assessable could not be accepted and that similar addition for asst. yr. 1 9 70-71 in assessee's own case was confirmed in appeal. On these reasons he made addition for sum of Rs. 9 ,0 9 7 for personal use of cars by assessee of company. Reliance was placed on decision in Rendell vs. Went (Inspector of Taxes) (1 9 65) 58 ITR 73 (HL). 3. In appeal, CIT(A) confirmed it and thereby distinguished decision relied upon by learned representative of assessee in case of CIT vs. A.R. Adaikappa Chettiar (1 9 73) 9 1 ITR 9(Mad) observing as under : "In my opinion, above decision does not apply to present case. Madras High Court decided in case cited by assessee that where director obtains any benefit in unauthorised manner from company then s. 2(6C)(iii) of Indian IT Act, 1 9 22, which corresponds to s. 2(24)(iv) of IT Act, 1 9 61, shall not apply, for in such event, director should return benefit to company under Company Law. Moreover, Madras High Court held, 'The ITO tried to assess value of benefit received by partner of managing agency firm from company but ITO did not assess value of benefit in hands of managing agency firm itself'. High Court held that unless managing agency firm was also assessed on such income, partner cannot be assessed and partner's assessment cannot be reopened. Moreover, in case of CIT vs. A.R. Adaikappa Chettiar (1 9 73) 9 1 ITR 9(Mad) unauthorised use of car was by managing agents but not by directors of company and, therefore, provisions of s. 2(6C)(iii) of Indian IT Act, 1 9 22, were not applicable at all. Moreover, in present case before me, it is director of company who used all cars of company. assessee could not prove that use of cars was unauthorised. In fact company Saroja Mills Ltd. authorised use of cars by assessee and assessee used such cars for number o f accounting years. company did not take any action against Sri T. Manickavasagam Chettiar nor did it ask for any payment. articles of company did not prohibit such use of cars by directors." 4 . assessee being aggrieved and dissatisfied with order of CIT(A) has preferred this appeal. Shri N. Devanathan, learned counsel for assessee, contends that learned CIT (A) erred in sustaining addition of Rs. 9 ,0 9 7 in income-tax assessment of late Shri T. Manickavasagam Chettiar as being value of perquisite attributable to use of car of Saroja Mills Ltd. for personal purposes, that CIT(A) ought to have appreciated that benefit of perquisite assessable under Act should be benefit or perquisite legally permissible to be enjoyed by assessee and in this case assessee was not authorised to use cars and, therefore, use of cars was unauthorised, hence, no question arises of assessment of value of perquisite as income of assessee. Reliance is placed on decisions in A.R. Adaikappa Chettiar's case (supra) and M.M. Metha vs. CIT (1 9 7 9 ) 117 ITR 362 (Cal) On other hand, Shri K. Venkataraman, learned Departmental Representative, contends that s. 2(24)(iv) of Act defines 'income' and s. 17(2) of Act defines 'perquisite'. These two sections read together leave no doubt that impugned amount of perquisite representing use of cars by director of company, which is for personal use by director, is assessable in income of assessee. He further contends that there is no proof that assessee is using cars as unauthorised in view of fact that company is not opposed to assessee, therefore, presumption is there that use of car by director is authorised. He further urged that assessee is using cars of company continuously for several years and company has not opposed it. Therefore, company has authorised its use and as such it is perquisite. He further contends that findings of CIT(A) that in fact company authorised use of cars by assessee and assessee used such cars for number of years and company did not take any action against Shri T. Manickavasagam Chettiar, nor did it ask for any payment, that articles of company did not prohibit such use of cars by director are all findings of fact and there is no material to rebut these. Therefore, it is proved that use of cars by assessee is authorised. He relies on order of CIT(A). 5 . In availing right of rebuttal Shri N. Devanathan admits that assessee is using cars of company continuously for number of previous accounting years and no action has been taken by company for unauthorised use of cars by assessee, that articles of company did not prohibit such use of cars by director, but he contends that it is for Department to prove that company has authorised cars and proof cannot be substituted for conjecture and inferences, howsoever, strong these are. He further admits that past record of case on issue is not in favour of assessee, but assessee on account of it cannot be debarred to plead its claim as each year is specific and independent and no principle of res judicata and estoppel is applicable in income-tax matters. 6 . We have heard rival contentions and gone through records before us. In case of A. R. Adaikappa Chettiar (supra), their Lordships of Madras High Court has held that in instant case unauthorised user of company's car by assessee was held not to attract s. 2(6C)(iii) of Indian IT Act, 1 9 22 ('the 1 9 22 Act') as it would not constitute benefit or perquisite obtained from company. Even if such unauthorised use of company's cars by managing agents is taken to be benefit or perquisite, unless, managing agency firm is assessed on such income by reopening its assessments, its partners' assessments cannot be reopened. In instant cases as managing agents' assessments were not reopened, it was held that reopening of partners' assessments was invalid in law. Further, as in instant cases it was found that unauthorised user was by assessee as managing agents and not as directors, it was held that provisions of s. 2(6C)(iii) cannot be brought in aid. Their Lordships further observed that benefit or advantage which might have been taken by director or other person from company without any claim of right has to be repaid or returned to company if company discovers unauthorised taking and seeks to enforce its restitution. In circumstances, words 'benefit or perquisite' occurring in s. 2(6C)(iii) can only take in those authorised by company and it is not possible to treat both authorised and unauthorised benefits alike. In case of assessee facts are quite distinguishable and CIT(A) has rightly distinguished these holding further that case of A. R. Adaikappa Chettiar (supra) is not applicable to facts of case of assessee. In case of assessee director and managing director used cars of assessee for years together and company did not oppose its use nor took action for recovery. Furthermore, in past claim of assessee was not accepted and disallowances were made as is made over here and assessee accepted it. Therefore, we hold that case of A. R. Adaikappa Chettiar (supra), is not applicable to facts of this case ; rather conduct of assessee and company proves that assessee is authorised to use cars of company and is using these per authority of company. use of car can be there no doubt under agreement between company and its managing director or directors, but agreement or contract could be worked out and it can be proved by conduct of parties. In this case it has been proved, as we have mentioned above, that company has not questioned assessee in previous year relevant for assessment year under consideration nor in past. No action was taken by company or even raised finger was to point out that director is using cars without its authority. Therefore, we hold that use of cars by assessee of company are authorised and in agreement with company. Furthermore, had it not been there then assessee should have challenged disallowance made in case of assessee in past but assessee accepted it. There is no proof brought on record to rebut this presumption and there is no proof on record even at this stage to rebut findings of CIT(A), which are findings of fact and are there in his order in paras. 3 and 4 and in particular, findings which we have cited above. Therefore, we hold that assessee has been authorised use of cars in dispute and as such, contention of learned counsel for assessee is liable to be rejected when he says that assessee is using cars as unauthorised and, therefore, onus is on Department to prove that use of cars is there by assessee as authorised by company to which cars belong and assessee is managing director thereof. Furthermore, s. 2(24)(iv) describes income and says that income includes : "the value of any benefit or perquisite, whether convertible into money or not, obtained from company either by director or by person who has substantial interest in company, or by relative of director or such person, and any sum paid by any such company in respect of any obligation which, but for such payment, would have been payable by director or other person aforesaid ;" Sec. 17(2) defines 'perquisite' and says that perquisite includes : "(i) value of rent-free accommodation provided to assessee by his employer ; (ii) value of any concession in matter of rent respecting any accommodation provided to assessee by his employer ; (iii) value of any benefit or amenity granted or provided free of cost or at concessional rate in any of following cases-- (a) by company to employee who is director thereof ; (b) by company to employee being person who has substantial interest in company ; (c) by any employer (including company) to employee to whom provisions of paras. (a) and (b) of this sub-clause do not apply and whose income under head 'Salaries', exclusive of value of all benefits or amenities not provided for by way of monetary payment, exceeds eighteen thousand rupees ;" Rule 3 of IT Rules, 1 9 62 ('the Rules') says that value of perquisite in respect of motor-car is to be computed in manner mentioned in table hereinafter stated : Value of perquisite per calendar month 1 2 3 Where Where h.p. rating of h.p. rating car does not of car exceed 16 or exceeds 16 or c u b i c capacity of cubic engine does capacity of not exceed 1.88 engine exceeds litres 1.88 litres Rs. Rs. 1. Where motor-car is owned or hired by employer and all expenses on maintenance and running are 300 400 met or reimbursed to assessee by employer 2. Where motor-car is owned or hired by employer but expenses on maintenance and running for assessee's private or 100 150 personal purposes are met by assessee Thus, from combined reading of s. 2(24)(iv), s. 17(2) and r. 3, there is no doubt left in our mind that if cars of company are used by its directors then it is benefit or amenity granted or provided by company and as such it is perquisite and it is immaterial if same is free of cost or at concessional rate, but value of such perquisite is to be determined and to be assessed in case of director or managing director or employee of company by whom such cars are used. As in this case it is admitted position that cars have been used by assessee of company, but these are used as such without authorisation of company and being so, value of this benefit cannot be assessed in income of assessee. Thus, it is admitted position that cars have been used by assessee and same are perquisite, but value of perquisite cannot be assessed in hands of assessee on totality of facts and circumstances of case since it has been assessed accordingly by authorities below, hence, we hold that they are justified in doing so and thereby confirm impugned order on issue. Before we part we want to mention that case relied upon by assessee inM.M. Metha'scase (supra) is also of no help to assessee being distinguishable and admitted facts as we have mentioned above it is not rebutted by learned counsel of assessee when learned Departmental Representative stated at Bar that cars of company are authorised to be used by its directors and managing directors and reliance was placed on articles and objects of association of company. No doubt, learned counsel for assessee accepted it stating therein that there is no proof brought on record by Department to prove that in case of assessee there was authorisation by company and if circumstances are there to prove it, as we have mentioned above, then it cannot be said that onus is not discharged by Department because contractual obligation can be proved by producing contract of service between employer (company) and employee (director, managing director), which is not produced by assessee as it is in his possession. Furthermore, it can be proved by conduct of parties since agreement can be in writing and verbal. Therefore, in this case it is proved from facts mentioned above that assessee was authorised to use cars and actually these have been used. Therefore, onus has been discharged by Department. Furthermore, contractual obligation is there as contended by learned Departmental Representative, which is proved by citing articles of association where use of cars of company is to be made by managing director and directors and assessee-counsel has failed to rebut it but admitted it though pleaded that it is for Department to prove by bringing material on record showing therein that there is contractual obligation between assessee and company for use of car and it cannot be taken as there if articles of association of company in general allowing use of car by managing director and directors, which contention we have rejected on account of reasons cited above. Accordingly, we hold that this decision is distinguishable. 7. In view of our above discussions and reasons thereto, we hold that there is authorisation for use of cars of company by assessee and, therefore, it is perquisite to be assessed in income of assessee and as it has been assessed in past and assessee has accepted it. Therefore, on account of totality of facts and circumstances of case and conduct of assessee, we hold that plea of unauthorised use of car by assessee is afterthought, in particular when order of ITO shows that value of this perquisite is assessed in income of assessee since 1 9 68-6 9 and assessee has accepted it. Reliance can be placed on decision in Rendell's case (supra) and past record of assessee. Hence, we confirm impugned order. appeal is dismissed. *** M. THIAGARAJAN v. INCOME TAX OFFICER