T.V. RAJAGOPALA RAO, J.M. Out of above three, first two appeals relate to asst. yr. 1982-83 and third appeal relates to asst. yr. 1983-84. first two appeals are directed against common orders of Commissioner, Visakhapatnam, dt. 20th April, 1985 and third appeal is directed against separate order of Commissioner, Visakhapatnam, dt. 20th April, 1985 relating to asst. yr. 1983-84. 2 . first among appeals is against that portion of Commissioner s order withdrawing benefit of continuation of registration under s. 184(7) of IT Act to assessee firm and against order of Commissioner directing to treat assessee firm as unregistered firm. second and third appeals are directed against quantum of assessments. 3. Now let us take up registration appeal first. In this case assessee was granted original registration and for asst. yr. 1982-83 it sought continuation of registration by filing form No. 12. There were certain blanks in form No. 12, and those blanks were pointed out in Commissioner s order and so they need not be repeated here. Admittedly, form No. 12 was signed by all partners of firm. However, date put under partners signatures is 31st March, 1982. previous year relevant to assessment for 1983-84 with which we are concerned in this appeal ended by 31st March, 1982. Thus, partners signed declaration in form No. 12 on last date of accounting year. According to Commissioner such form does not disclose change in constitution of firm or shares of partners since last day of previous year relevant to asst. yr. 1981-82 to last day of previous year relevant to asst. yr. 1982-83. Therefore he felt that it was defective form which has no sanctity in eye of law and grant of continuation of registration on basis of such form is erroneous and prejudicial to interests of Revenue and therefore he had issued notice dt. 6th March, 1985 calling upon assessee why action under s. 263 should not be taken against assessee. assessee submitted its written explanation dt. 3rd April, 1983. notice given to assessee was furnished at pages 1 to 3 of paper compilation. written explanation offered by assessee is furnished at pages 18 to 23 of paper compilation. On strength of Gujarat High Court decision inCIT vs. Trinity Traders(1974) 97 ITR 81 (Guj) wherein it was held that declaration under s. 184(7) of IT Act, 1961, for continuance of registration of firm signed by partners before end of accounting year is not valid because r. 24 r/w form No. 12 of IT Rules, 1962 requires that declaration should state that there has been no change in constitution of firm or in shares of partners upto last day of previous year relevant to assessment. ld. commissioner held that form No. 12 already filed by assessee was not valid declaration. 4 . During course of hearing before Commissioner another declaration in Form No. 12 signed by all partners was filed on 10th April, 1985 and request was made to accept same after condoning delay. Turning down request Commissioner held that inasmuch as quantum assessment itself was completed by ITO for asst. yr. 1983-84 on 9th March, 1983 assessee had no more right to file any declaration under s. 184(7). 5 . We heard Shri Ratnakar, ld. counsel for assessee and Shri N. Santhanam. ld. Departmental Representative. Firstly, Shri Ratnakar wanted to defendCIT vs.Trinity Traders(1974) 97 ITR 81 (Guj) and wanted to submit that its ratio no longer holds field inasmuch as that was decision rendered prior to s. 184(7) proviso (ii) as well as s. 185(2) and (3) were not amended by Taxation Laws (Amendment) Act, w.e.f. 1st April, 1971. So also, at time when Gujarat High Court decision was rendered s. 185(2) (3), can be invoked only for rectification of defects in application for registration and similar provisions were not available for rectification of defects in declaration furnished by registered firm under s. 184(7) and for mere technical defects firm registered earlier would be assessed as unregistered firm. According to Mr. Ratnakar in order to get over difficulties previously used to be confronted for getting benefit of continuation of registration under s. 184(7). Taxation Laws (Amendment) Act, 1970, was brought in w.e.f 1st April, 1971. Mr. Ratnakar brought to our notice portion of commentary found in Sampat Iyengar's Law of Income-tax, 7th Edition, revised by Justice S. Ranganathan, Vol. 5 at page 3963 where ld. author opined as follows: "The present sub-sections are as they were redrafted by Taxation Laws (Amendment) Act, 1970, w.e.f 1st April, 1971. Under old sub-ss. (2) & (3), there was provision for rectification of defects only in application for registration and none for rectification of defects in declaration furnished by registered firm under s. 184(7) and for mere technical defects, firm registered earlier could be assessed as unregistered firm. In order to get over this difficulty these sub-ss. (2) & (3) were redrafted." Differentiating facts of Gujarat High Court case he submitted that their Lordships of Gujarat High Court were concerned for asst. yr. 1967-68. assessee before them was firm and it had filed its income tax return originally on 19th Aug., 1968. That return was not signed by two of partners and therefore it was defective return. On 16th April, 1969 assessee firm before Gujarat High Court filed revised return along with new declaration form dt. 13th June, 1965. This declaration contains some corrections. At two places assessment was changed from 1966-67 to 1967-68 It was case of Revenue that declaration made for 1966-67 was sought to be utilised for asst. yr. 1967-68 by making above corrections. accounting period relevant to asst. yr. 1967-68 ended in that case on 12th Nov., 1966 whereas declaration was dt. 13th June, 1966 which is five months before close of accounting year. However, in facts before us admittedly declaration was filed on 1st April, 1982 and according to Shri Ratnakar partners signed on last day of accounting year and thus there is sufficient compliance with s. 184(7), r. 24 of IT Rules and also Form No. 12 which is prescribed form under r. 24. real objection of ld. Commissioner appears to be fact that partners have signed Form No. 12 on 31st March, 1982 does not clearly and completely reveal that there is no change in constitution of assessee firm in previous year. His suspicion is that from time partners signed impugned form No. 12 on 31st March, 1983 till close of day on 31st March, 1983 there is likelihood that firm has been dissolved and reconstituted and so it is not valid firm under s. 184(7). Once declaration is filed on 1st April, 1982 we do not know how such inference can be possibly drawn. If really there is change after signing by partners on 31st March, 1982 and before filing form No. 12 on 1st April, 1982 then impugned form No.12 would not have been filed and altered form was filed would show that after partners signed form No. 12 on 31st March, 1983 no change in firm took place till last minute of completion of day. Further there is no evidence before Commissioner to conclude that form No.12 was not signed by all partners on close of day on 31st March, 1982. 6. It is not as if that after submission of form No.12 no scrutiny or enquiry was done by ITO. If no scrutiny or enquiry was contemplated within sub-ss. (2) and (3) of s. 185 these would have been redundant. It is next contention of Revenue that blanks left unfilled in impugned form No. 12 together with facts that it was filed on last day of accounting year instead on completion of accounting year would make impugned form No. 12 wholly invalid declaration under s. 184(7) but not defect for rectification of which said form should have been returned for resubmission after rectifying defects. What are defects within ambit of sub-s (2) &(3) of s. 185 were also mentioned by ld. author in same commentary noted above at page 3964 as follows: Quite frequently it happens that formalities of application for registration and preliminaries therefor are not properly complied with. For instance, it may be that signatures of all partners are not affixed to instrument of partnership or to application for registration vide form Nos. 11, 11A and 12. Or it may be that particulars required in columns of said forms are not duly filled up or apportionment of income or loss as mentioned in said forms are incorrect, or other similar mistakes occur. provisions of s. 185(2) &(3) require ITO to be helpful to assessee in matter of proceeding applications for registration or declaration, as case may be, drawing their attention to defects and putting them in way of rectifying those defects and giving them opportunity, which statute itself provides within time-limit of one month for such rectification... Courts have remarked that rules requiring compliance with various details for registration are not meant to be trap to catch unwarry or illiterate or uninformed assessee, nor is ITO expected to gather revenue for government by refusal to award statutory relief on technical grounds. exercise of his quasi-judicial functions by ITO would, on other hand, exercise of his quasi-judicial functions by ITO would, on other hand, demand return of irregular application to applicant for being regularised as is done as matter of course by Registrars of High Courts and Sheristadars in District or Subordinate Judges or Munsiff Courts in matter of registering plaints or memorandum of appeal. ld. author based his commentary to some extent on Allahabad High Court judgment inCIT vs. Commercial Finance Corporation(1982) 30 CTR (All) 294 : (1982) 138 ITR 281 (All), Sec. 184(7) proviso (ii) states as follows : "The firm furnishes before expiry of time allowed under sub-s. 1 or sub-s. (2) of s.139 (whether fixed originally or on extension) for furnishing return of income for such subsequent assessment year, declaration to that effect, in prescribed form and verified in prescribed manner so, however, that where ITO is satisfied that firm was prevented by sufficient cause from furnishing declaration within time so allowed he may allow firm to furnish declaration at any time before assessment is made." Rule 24 of IT Rules, 1962 reads as under: "24. declaration to be furnished under sub-s. (7) of s. 184 shall be in form No. 12 and shall be verified in manner indicated therein and shall be signed by persons concerned in accordance with sub-r. 5 of r. 22." Form No. 12(ii) states as follows: (ii) there has been no change in constitution of firm or shares of partners since last day of previous year relevant to asst. yr. 19...19... upto last date of previous year relevant to asst. yr.19...19.. or date of dissolution of firm". question posed by Shri Ratnakar was what is meant by words prescribed and verified in prescribed manner came up for consideration even before Supreme Court in sales tax case in Sales Tax Officer, Ponkunnam & Ors. vs. K.I. Abraham 1967 STC 367. Hon'ble Supreme Court in that case while stating about extent of powers which can be conferred on rule making authorities held that delegation cannot be extended to authorities to prescribe time limit within which declaration is to be filed by registered dealer. In headnote of judgment following is held: expression in prescribed manner' occurring in s. 8(4) of CST Act 1956, only confers power on rule making authority to prescribe rule stating what particulars are to be mentioned in prescribed form, nature and value of goods sold, parties, to whom they are sold and to which authority form is to be furnished. But it does not take in time element. In other words section does not authorise rule making authority to prescribe time limit within which declaration is to be filed by registered dealer." In substance Shri Ratnakar wanted to make use of ratio of Supreme Court decision to attack validity of column No.(ii) in Form No.12 already extracted above. He submitted that if we feel that such column prescribed time limit in as much as Form No. 12 it part of r 24 of IT Rules 1962, we should hold that there is excessive delegation at least to extent that time limits are prescribed in column (ii) of Form No. 12 and to that extent it is void as, in his submission delegated authority never enjoyed power to prescribe time limit. 8 . After carefully considering his submissions we feel that it is quite unnecessary for us to decide on this question for according to us time limits were already set out under s. 184(7) itself and not either under r. 24 or in Form No.12. Shri Ratnakar then argued that grant of continuation of registration and formalities to be complied with in order to get that relief or benefit represents procedural law and procedural law is always to be construed and applied in manner so as to make it hand to cause of justice and it cannot be treated as substantive provision so as to defeat rights of parties. He cites Gujarat High Court decision inBillimore Engineering Works vs. CIT(1986) 53 CTR (Guj) 370: (1985) 156 ITR 153(Guj). 9. Next we were invited to contents of CBDT circular quoted by Bombay High Court while dealing with case ofDattatraya Gopal Shatte vs. CIT(1984) 41 CTR (Bom) 393: (1984) 150 ITR 460 at page 463 (Bom): " Officers of Department must not take advantage of ignorance of assessee as to his rights. It is one of their duties to assist tax payer in every reasonable way, particularly in matter of claiming and securing reliefs and in this regard officers should take initiative in guiding tax payer where proceedings or other particulars before them indicate that some refund or relief is due to him. This attitude would, in long run, benefit Department for it would inspire confidence in him that he may be sure of getting square deal from Department." 10. Then he drew our attention to Madras High Court decision inCIT vs. T.S. Krishna(1984) 149 ITR 99 at 102 (Mad) wherein it is held construction which would result in stultifying benefit conferred by statute should be avoided. 1 1 . He also invited our attention to advice given by Hon'ble Supreme Court as to approach to be adopted while interpreting and administering provisions of law stated inSaroj Agarwal vs. CIT (1985) CTR (SC) 183 :(1985) 156 ITR 497 (SC) at p. 508 it is held as follows; "Facts should be viewed in natural perspective, having regard to compulsion of circumstances of case. Whether it is possible to draw two inferences from facts and where there is no evidence of any dishonest or improper motive on part of assessee it would be just and equitable to draw such inference in such manner that would lead to equity and justice. Too hypertechnical or legalistic approach should be avoided in looking at provision which must be equitably interpreted and justly administered. It is true that there must be succession by inheritance. But it is possible in particular case without any express provision either in deed or in writing to infer from conduct of parties that there was succession, and if such view is possible in spite of absence of express provision, in our opinion, such inference could be and should be drawn, Courts should whenever possible unless prevented by express language of any section or compelling circumstances of any particular case, make benevolent and justice-oriented inference. Facts must be viewed in social mileu of country". He submitted that because partners signed on 31st March, 1982 though form was filed before 1st April, 1986 inference that declaration did not comprehend or cover whole of accounting year is something too technical which sort of interpretation should be avoided in order to do substantial justice especially while interpreting procedural law of beneficial provisions thereunder. We agree with this contention of Shri Ratnakar. 12. Next he invited our attention to decision of Full Bench of Madras High Court inCIT vs. K.S. Vidyanathan(1985) 47 CTR (Mad) 101 (FB) : (1985) 153 ITR 11 (Mad) (FB) where at page 27 it is held that no exception can be taken to proposition that fiscal statutes should be interpreted strictly. This rule applies only to charging section and not to machinery sections or to provisions which give relief to tax payer. Lastly, he submitted that there are decisions according to which Commissioner cannot exercise his revisionary powers under s.263 in matters relating to continuation of registration under s. 184(7). He invited our attention to decision of Allahabad High Court reported inCIT vs. Nityanand Devki Nandan (1981)21 CTR (All) 68 :S(1981) 129 ITR 177 (All).As per headnote of decision following is held: "Therefore, in case where firm claims that registration granted to it for earlier years has continued to be operative for subsequent years on basis of relevant declaration made by it, as contemplated by sub-s.(7) of s. 184 Act does not contemplate passing of any order by ITO which can be revised by Commissioner under s.263". Though there are decisions contrary to Allahabad decision cited before us still as it is in favour of assessee it should be preferred to decisions of other High Courts holding contrary view. 13. ld. departmental Representative heavily relied upon Gujarat High Court decision in (1984)97 ITR 81(Guj) (supra) and also contended that as facts are nearer to facts of case ratio in that decision should be applied. Further, it is contended that blanks filed in together with fact that form does not cover whole of accounting year would make impugned form invalid one and argument that though utmost deficiencies in impugned form amount to defects which can be rectified under s.185(2) and (3) is not valid argument. 14. Thus we have heard both sides on point. We are inclined to accept arguments advanced on behalf of assessee's counsel. Firstly, we hold from facts and circumstances of case that there is no reason to believe that after partners for assessee firm signing impugned Form No.12 on 31st March, 1982 there was possibility of change in constitution of assessee firm or any such change came into being. We also hold that particulars furnished in impugned Form No.12 clearly disclose that there was no change in constitution or in share holding of partners in whole of previous year relevant to asst. yr.1982-83. We are also of opinion that after ITO had any doubt in that regard he would have returned Form No.12 pointing out defects and calling upon assessee to rectify defects. We do not agree that blanks left out unfilled by assessee in impugned Form No.12 are not curable defects. Keeping in mind spirit or object with which sub-ss. (2) and (3) of s.185 of IT Act were substituted w.e.f 1st April, 1971 we are unable to hold that any defects existed in impugned Form No.12 which make it invalid declaration. Assuming without admitting impugned Form No.12 is defective new one filed on 10th April, 1985 signed by all partners, in our opinion should have been taken on file and consequently delay should have been condoned. Further filling Form No.12, scrutinising it are all procedural matters Procedural law always is considered and applied in manner so as to make it handmaid to advance cause of justice. construction which has effect of stultifying benefit conferred by statute should always be avoided. As there are conflicting decisions about question of revisionary jurisdiction of Commissioner with regard to continuation of registration under s. 184(7) we have to prefer Allahabad High Court decision cited before us as it is in favour of assessee and hold that Commissioner has no jurisdiction under s. 263 with reference to order granting continuation of registration under s. 184(7). 15. In result appeal is allowed. 1 6 . Now let us take up errors or defects pointed out by Commissioner from quantum aspects found in assessment order of ITO for asst. yrs. 1982-83 and 1983-84. In accounting year relevant to asst. yr. 1982-83 gross contract receipts amounted to Rs. 1,63,20,854. net profit shown was Rs. 12,14,394 which worked out to 7.38 per cent on gross contractual receipts. While working out net profit at Rs.12,13,394 net commission amount received by assessee from sub-contractors viz. Rs. 1,87,459 was deducted. In working out this figure of Rs. 1,87,459 assessee deducted from commission received commission of Rs. 2,34,262 paid by it. working of assessee according to Commissioner is not correct. assessee obtained certain contract works as subcontractor from other principal contractors to whom he paid commission of Rs. 2,34,262. This commission of payment was necessary outgoing and had to be deducted in computing assessee's net profit because receipts from such contracts are taken into consideration for such contracts are taken into consideration for determining assessee's profit and contracts were actually executed by assessee itself. deduction of this amount from commission received of Rs. 4,21,821 is therefore not correct. According to Commissioner Rs. 1,04,203 received as interest from over drawals by partners was considered as part of net profit derived in business. amount of Rs. 55,500 donation was made. According to ld. Commissioner though as per Profit and Loss account net profits were shown by assessee at Rs. 6,15,147, actually net profits from execution of contract by assessee itself came only to Rs. 2,49,443. As per calculations given by ld. commissioner in Annexure to his impugned order are as follows: . Rs. Rs. Net Profit . 5,16,147 Add; (i) Donation 55,500 . (ii) Investment allowance 2,03,720 2,59,220 reserve . . 7,75,367 Less: (i) Commission received 4,21,721 . from sub- contractors (ii) Interest received from 1,04,203 5,35,924 partners Net profit from execution of . 2,49,443 contracts by assessee itself: net profit of Rs. 2,49,443 gross contract receipts of Rs. 1,64,20,855 yields only 1.5 per cent which by any standards, according to ld. Commissioner is absolutely low. So also for asst. yr. 1983-84 Commissioner found that assessee declared loss of Rs. 1,76,038 as per his P&L account. According to him there are some items which should not have been credited for purpose of determining net profit or loss derived from contractual works actually executed by assessee. For instance, assessee had obtained certain contracts in its own name did not execute them itself but gave them on sub-contract to other firm and received commission of Rs. 2,21, 27and this amount was credited to profit and loss account. So also amount of Rs. 1,56,652 received as interest from partners on their excess drawings though cannot be regarded as income derived from execution of contract work was considered as such. When these two amounts aggregating to Rs. 3,77,922 were excluded from credit side of P&L account result would be loss of Rs. 5,53,966. According to Commissioner ITO should have recast Profit and Loss account. However he found ITO merely accepted declared results without making any proper enquiry into cause of loss although state of accounts of assessee was such that provisions of s. 145(1) were applicable and therefore ld. commissioner held that assessment orders of ITO for both these assessment years. are erroneous and prejudicial to interest of Revenue. So also, for both these assessment years. ITO granted 30 per cent depreciation on jeeps employed by assessee on ground that jeeps were used for carrying material in heavy construction works. This was found to be erroneous and ld. commissioner held that depreciation which can be granted on written down value of jeep was only 20 per cent and 30 per cent. Further Commissioner in his impugned orders found that ITO granted investment allowance. ld. Commissioner held that assessee being contractor it cannot be regarded as industrial undertaking within meaning of s. 31A(1)(b) (iii). He further held that assessee was neither engaged in construction nor manufacture or processing of any article or thing. Therefore granting investment allowance was erroneous and prejudicial to interests of revenue. assessee claimed s. 80 G deduction in part for donations made to Shri Ramchandra Mission. ld. CIT found that payment of donation was not by receipt duly bearing appropriate revenue stamp and granting s.80G deduction in respect of donations not properly evidenced by due receipt bearing revenue stamp was error prejudicial to interests of Revenue. Regarding low gross profit and rejection of books by invoking provisions of s. 145(1) assessee contended that it is not correct. gross profit rates disclosed by it were in line with gross profit rates disclosed since inception of assessee firm in asst. yr.1979-80. At page 21 gross profit rate as well as net profit rate which were accepted by Department are as follows: Asst. yr. Rate (GP) Rate of net profit 1979-80 13.18 per cent 7.73 per cent 1980-81 7.16 per cent 4.57 per cent 1981-82 9.14 per cent 5.45 per cent 1982-83 17.67 per cent 7.30 per cent 1983-84 14.76 per cent 5.19 per cent 17. It is contention of Shri Ratnakar, ld. counsel for assessee that accounts maintained by assessee for two accounting years relevant to asst. yrs. 1982-83 and 1983-84 remained same as in earlier years. When earlier year accounts were found acceptable how is it that accounts similarly maintained for accounting year relevant to asst. yrs. 1982-83 and 1983-84 were not acceptable. On behalf of assessee it is submitted that assessee is not sub-contractor and contract works undertaken by assessee are erection of transmission lines of 230 KV double circuit line. work is done on different kinds of terrain and depending from terrain conditions assessee designs transmission towers and submits them to APSEB for approval. After its approval towers would be manufactured elsewhere and they would be supplied to assessee for being used for erection purposes. During supply of towers delay would be caused either at stage of approval of APSEB or at point of manufacturing. assessee is obliged to retain labour in anticipation of supply transmission towards which results in higher expenditure towards labour charges paid for idle time and it is not possible to lay down idle time standards every year. There is no other contractor in south India doing similar erection business similar to work carried on by firm. only comparable case is one Kamani Engineering Government of India undertaking sustaining heavy losses. 1 8 . Now assessee submitted its written explanation for every point raised in notice issued under s. 263 for two assessment years. under consideration. It is dt. 3rd April, 1983 and as also already stated copy of which furnished at pages 18 to 23 of paper compilation. In either of impugned orders Commissioner does not choose to state any reasons nor deal with objections raised by him. However, in each of impugned order it is held that as necessary enquiries for determining adequacy of profits were not made by ITO and as he did not consider applicability of proviso to s. 145(1) he considered it necessary to set aside assessment order dt. 9th May, 1983 for asst. yr. 1982-83 and assessment order dt. 21st May, 1984 for asst. yr.1983-84. He directed ITO to redo assessmentsde novoaccording to law. 19. question is whether Commissioner is competent to set aside assessments without dealing objections raised for his action and without setting aside objections raised by assessee. There is direct decision of Punjab and Haryana High Court supporting contention of assessee in this regardCIT vs. R.K. Metal Works1977 CTR (P&H) 99: (1978) 112 ITR 445 (P&H). In that case also detailed written statement raising objections for notice issued by Commissioner was filed.However without dealing with objections raised before him Commissioner held that order of ITO was erroneous and prejudicial to interests of Revenue and directed ITO to reframe assessment after giving assessee necessary opportunity t o adduce evidence to prove points raised by assessee. Justice Chinnappa Reddy, as he then was, delivering Bench decision held as Chinnappa Reddy, as he then was, delivering Bench decision held as follows: "When assessee filed detailed written statement before him, Commissioner did not deal with any of points raised in statement. He thought that best course in circumstances was to remand matter to ITO for consideration of points raised in assessee's written statement. That certainly was not proper course to be adopted by him. It was necessary for Commissioner to state in what manner he considered that order of ITO was erroneous and prejudicial to interest of Revenue and what basis was for such conclusion. After indication of his reasons for such conclusion, it would certainly have been open to him to remand matter to ITO for such other investigation or enquiry as might be necessary". 20. first objection was about low gross profit. According to assessee net profit derived was Rs. 12,13,394 on gross contractual receipts of Rs.1,64,20,854 and gross profit works out to 7.38 per cent. As per Profit and Loss account profit derived was Rs. 5,16,147. To that assessee added back Rs. 8,84,706 as per break-up given in para 11 or impugned orders and subtracted Rs. 1,87,459 towards amount received from sub-contractors and resultant figure would be Rs.12,13,384. assessee obtained some contract works as sub-contractor from other principal contractors to whom it had paid amount of Rs.2,34,262 and while working out net profit of Rs. 12,13,324 deducted Rs. 1,87,459 which is amount received from sub-contractors towards commission. Deduction of said amount, according to Commissioner is not correct. It is contended before Commissioner that remuneration paid to partners should be considered to be charge on profit according to decision of this Tribunal in case of M/s Ramakrishna Contractors, Tadepalligudem in ITA No. 858 (Hyd) 1978-79. According to assessee profit of firm has to be worked out only after deducting remuneration paid to partners. So also, it is contention of assessee that any contractor has to necessarily incur expenditure by way of paid interest on moneys borrowed and also on bank charges. Likewise loss incurred in sale of assets is to be considered normal charge for purpose of determining profits. Several of contentions raised on behalf of assessee were never dealt with by ld. Commissioner. However, he came to conclusion that net profits as worked out by him in Annexure was only Rs. 2,49,443 which gives gross profit figure of 1.5 per cent only. Further though he had stated that accounts of assessee were such that provisions of proviso to s. 145(1) were applicable. No reason for his finding was given. It is well settled that mere low gross profit rate is not reason for rejecting book results. Department Must show other defects in books of account maintained by assessee and defects must be such that it is not possible to determine income properly. Since no other material was brought on record other than low gross profit finding that proviso to s. 145(1) is applicable to facts of case is not justified. 2 1 . second objection is that assessee was wrongly allowed investment allowance. For asst. yr. 1982-83 amount involved was Rs. 2,71,626 and for other assessment year. amount involved was Rs. 2,03,720. According to Commissioner assessee being only contractor cannot be considered to be engaged in business of any industrial undertaking or construction, manufacture or production of any thing or article. Even from impugned orders it is clear that Sri Y. Ratnakar who appeared for assessee brought to notice of ld. commissioner some decisions of this Tribunal and other Tribunal Bench decisions which would justify grant of investment allowance even though assessee was contractor. ld. Commissioner in his impugned orders admitted that decisions were filed before him and were also filed before ITO during course of assessment proceedings. However, there is no discussion whatsoever whether this decision applied to facts of case. If not applicable for what reasons. He merely stated in his impugned orders that assessee being contractor can not be regarded as industrial undertaking within meaning of s. 324(2)(b)(iii)and therefore assessee cannot be taken to have been engaged in construction or manufacture or processing of any article or thing and on that ground grant of investment allowance was erroneous and prejudicial to interest of revenue. 2 2 . Another objection raised by Commissioner is that higher percentage of depreciation was allowed on jeeps. It was contention of assessee that jeeps in question were fitted with trailers for purpose of transporting men and material to works-spot situated far away from towns. In transporting men and material to works-spot situated far away from towns. In those circumstances jeeps were in fact used for carrying on construction material and they should be regarded as being identical to motor buses and minibuses for which rate of depreciation was 30 per cent. attention of ld. commissioner was drawn to circular of Board being No. 315 dt. 24th Sept., 1981. In that Circular Board had occasion to consider what should be appropriate rate of depreciation in respect of motor device. Ultimately he reduced rate of depreciation from 20 per cent to 30 per cent. Shri Ratnakar contended that if higher rate of depreciation was felt wrong then it would have been rectified under s. 154 and for that purpose whole of assessment need not be set aside. Shri Ratnakar brought to our notice decision of Delhi High Court reported inAddl. CIT vs. J.K. D' costa (1981) 25 CTR (Del) 224: (1982) 133 ITR 7(Del). In head note of decision following is found: " mere fact that there is some minor omission or mistake in assessment order cannot justify action of Commissioner in setting aside whole of assessment order. Such whole-sale cancellation of assessment with direction to make fresh assessment is called for only in cases where there is something totally or basically wrong with assessment which is not capable of being remedied by amendments to assessment order itself. Where Commissioner comes to conclusion that there is defect in assessment order in so far as question of levy of interest was not considered by ITO, all that Commissioner has to do is to direct ITO to consider question on merit and in accordance with law after giving assessee opportunity of being heard". What is said about interest in Delhi case cited above equally applies to question of rate of depreciation granted on particular plant and machinery. Therefore applying ratio of Delhi High Court decision Shri Ratnakar contended that in opinion of ld. Commissioner higher depreciation was granted than what was due on plant and machinery. Shri Ratnakar also brought t o our notice decision of Patna High Court inCIT vs. Shantilal Agarwalla(1983) 35 CTR (Pat) 304: (1983) 142 ITR 778 (Pat). In headnote of decision following is held at page 779. "He has to point out while cancelling such orders, on materials on record, as to how order is prejudicial to interests of Revenue. Though sub-s. (1) of s.263 vests power in Commissioner in subjective terms, yet even when enactment vests discretion in any authority saying "if it appears", "if he is satisfied", "if he considers necessary", that does not mean that it is matter of only subjective satisfaction and such authority has not to judge circumstances in objective manner. Though while setting aside order of assessment and directing subordinate authority to reconsider matter afresh, appellate or revisional authority should not record conclusive findings on questions involved, yet, at same time, orders passed by subordinate authorities should not be set aside without indicating reasons, in exercise of power which is circumscribed by conditions mentioned in very section". 2 3 . As against this ld. departmental representative relied upon two Supreme Court decisions one reported inCIT vs. McMillan & Co.(1958) 33 ITR 182 (SC). In that case ratio of decision inNarrondas Manordass vs. CIT(1957) 31 ITR 909 (Bom) delivered by Justice Chagla was quoted with approval at pp. 193-194 which are as follows : "It is clear that AAC has been constituted revising authority against decisions of ITO, revising authority not in narrow sense of revising what is subject matter of appeal, not in sense of revising those mattes about which assessee makes grievance but revising authority in sense that once appeal is before him he can revise not only ultimate computation arrived at by ITO but he can reverse every process which led to ultimate computation or assessment. In other words, what he can revise is not merely ultimate amount which is liable to tax, but he is entitled to revise various decisions given by ITO in course of assessment and also various incomes or deductions which came in for consideration of ITO." In same decision it is held that Commissioner may interfere with any order of ITO including determination of proviso to s. 13 provided other conditions of section are fulfilled. We have no quarrel with proposition of law expounded by Hon'ble Supreme Court but we are of opinion that no defects were pointed out by ld. Commissioner entitling him to invoke proviso to s. 145(1). ld. departmental representative also invited our attention toCIT vs. Rai Bahadur Hardutroy Motilal Chamaria(1977)66 ITR 443 (SC). In that case Hon'ble Supreme Court interpreted word consideration' by ITO. According to their Lordships of Supreme Court considerations does not mean incidental or collateral examination of any matter by ITO in process of assessment. There must be something in assessment order to show that ITO applied his mind to particular subject matter or particular source of income with view to its taxability or to its non- taxability and not to any incidental connection. Though no exception can be taken to interpretation of word consideration and meaning given to it in said decision how it is applicable to facts before us is not explained to us fully. It was only stated that Commissioner had grievance that ITO did not consider accounts properly and therefore Commissioner is entitled to direct ITO to invoke provisions of s. 145(1). However this submission of ld. departmental representative cannot be accepted. 24. In impugned order for asst. yr. 1982-83 at para 3 Commissioner himself found that some adjustments were made by ITO though they were minor and of routine nature. Unless ITO looked into accounts question of adjustment whether they are routine or otherwise would not be possible. Therefore in view of that finding it cannot be said that ITO did not at all consider accounts of assessee especially when records disclose that several hearings were given before assessments were completed. 2 5 . assessee made donation to Shri Ramkrishna Mission in accounting year relevant to asst. yr. 1982-83. said donation was Rs. 55,500. In support of donation receipt was produced. On mere ground that receipt does not bear revenue stamp of 20p.the Commissioner held that grant of deduction of Rs. 55,500 is not proper. According to him s.80G deduction should not have been granted to assessee. Sec.80G (2) (b) is as follows: 80G (2). sums referred to in sub-s. (1) shall be following namely (b) any sums paid by assessee in previous year as donations for renovation or repair of any such temple, mosque, gurdwara, church or other place as is notified by Central Government in Official Gazette to be of historic, archaeological or artistic importance or to be place of public worship of renown throughout any State or States." Thus what is allowed is sum paid. ques is simply because receipt passed by Shri Ramkrishna Mission did not bear proper revenue stamp does it altogether negate donation given, unstamped and unsufficiently stamped document vitiates documents or makes document invalid but it does not invalidate transaction under said document. In K. Krishnamurthy's Indian Stamp Act, North Edition, at page 11 citing leading case on subject inCommissioner of Inland Revenue vs. Angus 23 QBD 579, ratio of decision given by Esher, M.R. was quoted as follows: "The first thing to be noticed is that thing which is made liable to duty is instrument . If contract of purchase and sale or conveyance by way of purchase and sale can be or is carried out without instrument case is not within section and no tax is imposed. It is not transaction of purchase and sale which is struck at, and if any one can carry through purchase and sale without instrument then legislature has not reached that transaction." English case cited was also followed by Allahabad High Court in Swadeshi Cotton Mill AIR 1982 All 291. Therefore, simply receipt which is produced before ITO is defective it does not automatically invalidate donation itself. fact of donation can be proved apart from instrument. If ITO had not doubted donation he is perfectly justified in allowing deduction under s. 80G. Further if receipt does not bear any proper stamp then penalty of 10 times which is payable as proper stamp can be collected n d it can be validated under Stamp Act provisions. This procedure is ordinarily followed in Civil Courts also and therefore in view of our above discussion finding of learned Commissioner that 80G deduction was wrongly granted by ITO, in our humble opinion, is erroneous under law. 2 6 . We have heard these appeals along with appeals of sister concern of assessee viz., M/s Toco Engineering Co. Vijaywada, which involved almost identical points. We have passed our orders in ITA Nos. 1089 to 1093 (Hyd) 1985 on 14th April, 1986. There also we had, after considering same defects pointed out by Commissioner, came to finding at close of paras 21 and 22: "This is not case where ITO without any proper inquiry had completed assessment. Commissioner has not shown any major omission in making inquiries, which would result in setting aside of entire assessment. With regard to minor findings regarding depreciation, we do not see any reason to go into correctness of order of Commissioner, since this point was not seriously argued. We will upheld orders of Commissioner under s. 263 limited to inquiry of correctness of depreciation in respect of vehicles". Thus we allowed appeals subject to our finding that s. 263 orders would be limited for purpose of enquiry regarding depreciation allowable. facts being similar in both cases we adopt said order as our ultimate order in this case also. Accordingly we also allow appeals and limit s. 263 orders for purpose of enquiry regarding depreciation allowable. *** ETCO ENGINEERING CO. v. INCOME TAX OFFICER