EGBERT SINGH, A.M. appeals are by orders of Commissioner of Wealth-tax (CWT(A) revenue, which are directed against separate for short), by which he cancelled orders of rectification passed by WTO (WTO for short), for both years under consideration. facts of case and background are similar and accordingly ld. counsels of both sides have addressed us in one set. We accordingly consolidate appeals for disposal by this common order. first common point of appeal by Revenue is that CWT(A) went wrong in cancelling order passed under s. 35 by WTO. In this order s. 35, WTO mentioned for asst. yr. 1978-79 that original assessment was made on net wealth of Rs. 23,80,800 which was reduced by appellate authorities to Rs. 16,21,603. assessment was made on 24th Feb., 1982. He pointed out that search was made at residence of assessee on 16th July, 1981, during which certain papers, valuable articles were seized from which it was found that assessee advanced Rs. 4.5 lacs to one Mr. Duggal in 1972. amount was treated as un-explained income of assessee and brought to tax under Income-tax proceeding for asst. yr. 1972-73. He mentioned also that this amount was also subjected to wealth tax for asst. yrs. 1972-73 to 1977-78. He pointed out that however this amount was not included in original assessment made for year under consideration, which was apparent mistake from record. Accordingly, WTO issued notice under s.35 to which there was no response from assessee initially. After being given sufficient opportunity assessee submitted written reply contending that mistake of non-inclusion of above amount for year under consideration was not mistake apparent from record and hence s. 35 would not apply. It was also submitted that without prejudice to above contention, assessee mentioned that said amount was included as income in asst. yr. 1972-73 and tax, liability of Rs.4,39,875 was determined as payable by assessee and, therefore, assessee was left with only Rs. 10,125 and, therefore, addition, if any, was to be made only in respect of this balance. It was further pointed out that CIT in his order under s.132(12) of IT Act had categorically stated that Rs. 4.5 lacs should not be included in wealth-tax for asst. yr. 1978-79 and on words. assessee, therefore, stated that WTO at time of original assessment did not include this amount of basis of order under s. 132(12) passed by CIT and, therefore, there was no question of any mistake of rectification. WTO pointed out that in original assessment above amount was not included due to some mis-interpretation of seized papers, as made by ITO (ITO for short) under s. 132 (5) of IT Act, in which this amount was stated to have been advanced in 1972 and was stated to have been advanced in 1972 and was received back by assessee on 30th Sept., 1976. WTO referred to seized paper relating to this point, which he reproduced in his order, which indicated that above sum was included by amount of Rs. 10, 68,000 due from Mr. Duggal which clearly show that above sum was not received back on 30th Sept., 1976. He also noted that CIT passed order under s. 132(12) on basis of ITO's order under 132(5) and no occasion to examine these seized papers, before stating that Rs. 4.5 lacs should not be taxed in wealth tax assessment for asst. yr. 1978-79 onwards only because amount was received beck on 30th Sept.,1976 and must have been spent by assessee on 31st March, 1978. WTO, therefore, considered that orders passed under s. 132(5) and 132(12) were clearly on mistakes apparent from records, and, therefore, contention of assessee on this point was not acceptable. According to WTO order under s.132(5) was for limited purpose of retention or releasing seized articles, although no such rectification was made in those orders it would not have changed position of retaining or releasing seized assets. He also pointed out that for asst. yr. 1982-83 assessee was asked to state whether above sum was received back or was still; outstanding till asst. yr. 1982-83. He pointed out that from return of income filed for 1982-83, it was noticed that claim was made that seized cash found at time of search also included said amount of Rs.4.5 lacs. WTO, therefore, inferred that said amount have not been sent away, but was available with assessee till asst. yr. 1982-83, which means that same amount was still available as on 31st March, 1978 being valuation date for year under consideration. He, therefore, concluded that said mistake of non-inclusion of above sum, was mistake apparent from record. He also considered contention of assessee for deduction of Rs.4,39,875. according to WTO concealed income was detected only on 16th July, 1981 and therefore, liability to pay tax on income arose only after date and no such liability was in existence as on 31st March, 1978. He, therefore, declined to allow this deduction. He also held that even otherwise such liability which might have arisen on 31st March, 1972 and such liability was outstanding on valuation date for more than one year, which cannot be allowed under s. 2(m). He, therefore, completed rectification order by including above sum. assessee took up matter before CWT(A) and contended that under s.35 amount which was being disputed by assessee could not be brought to tax. CWT(A) further noted that even on merits of CIT under s. 132(12) held that there was no doubt that Rs.4.5 lacs formed part of net wealth of assessee on valuation date for asst. yr. 1972-73 to 1977-78 and therefore, assessee would not be liable to pay wealth -tax for asst. yr. 1978-79 onwards because having regard to inadequacy of withdrawals and also style of living by assessee, it can reasonably be presumed that said amount was spent by assessee in subsequent years. In view of this order of CIT present CWT(A) held that inclusion o f above sum in wealth tax assessment, was not justified. Hence this appeal by Revenue. It is vehemently urged by ld. Departmental representative that CWT(A) went wrong in deleting above amount inspite of facts and circumstances narrated in order of WTO. It is stressed that purpose of s. 16(3) of WTA is completely and basically different from that of s.132(12) of ITA, particularly when CIT did not give any finding or reason before stating that above sum had been spent away by assessee and was not available in asst. yr. 1978-79 on words. It is submitted that under s. 132(5) of ITA , ITO or authorised officer concerned was supposed to pass summary order in order to ascertain liability of assessee only for retention of money so seized and not for any other purpose and therefore, CWT(A) went wrong in relying solely of order of CIT , for purpose of deleting above addition in wealth-tax assessment. In short , it is urged that on facts of case, mistake of non-inclusion of above amount in wealth-tax of assessee , was apparent mistake from record and therefore, order of CWT(A) may be reversed and that of WTO may be resorted. assessee ld. counsel , however , resist submissions on behalf of Revenue , contending order passed under s. 132(5) or under s. 132(12) was very much relevant for present purpose , particularly when CIT as indicated above, has given specific finding that above sum could not form wealth of assessee for asst. yr. 1978-79 onwards, as same might have been spent by assessee considering his status and life style. It is vehemently urged on behalf of assessee that there was no actual cash available so as to justify above order of WTO. It is submitted, therefore, that order of CWT(A) may be upheld. We have gone through orders of authorities below and other papers placed before us for our consideration. We have gone through provisions of above sections both income tax as well as wealth-tax for our perusal. We find that there is sufficient force in arguments made on behalf of t h e Revenue. CIT passed order under s. 132(12) which was on application of assessee against order passed by ITO under s.132(5) of ITA. Under this section, ITO has to pass order within 90 days of seizure , order estimating undisclosed income in summary manner to best of his judgment on basis of materials as are available with him. assessee , who objects to such order may file application to authorities concerned who can pass such orders as it thinks fit. provisions of s. 132(5) of ITA comes into play when money or cash was found and seized as ITO concerned has ascertained out of seized amount , how much should be retained to specify existing tax liabilities and approximate tax , penalty etc., which should be adjusted before ordering that balance should be released to t h e party concerned. In our opinion, s. 132(5) contemplates provisional t h e party concerned. In our opinion, s. 132(5) contemplates provisional enquiry with view to determine how much amount has to be retained etc. After complying with r. 112A, regular assessment would follow in same manner as in case of all other tax payers. This was view of Hon'ble Supreme Court in case of pooranmal vs. Director of Inspection (Investigation) 1974 CTR (SC) 25 (1974); 93 ITR 505 (SC). Of course, ITO concerned is expected to consider relevant matters with caution and fairness although he has to make order within short span of period of 90days from date of seizure. That apart, it was held by Hon'ble Punjab & Haryana High Court , as reported in case of Ramesh Chander & Ors vs. CIT (1974) 93 ITR 244) (P&H) that order s. 132(5) , assets can be withheld even before final assessment had been made and before assessee can be said to be in default. It was pointed out that there was vitel difference between order under s. 132(5) and order under s. 226(5). Hon'ble Madras High Court held in cases reported in Gulab & Co & Anr vs. Superintendent of Central Excise (Preventive) & Ors. 98 ITR 581 (Mad) and as held by Hon'ble Mysore High Court as reported in C. Venkatta Reddy & Anr vs. ITO & Ors (1967) 66 ITR 212 (Mys) s. 132(5) does not take away applicability of normal procedure of assessment as this order was passed to summarily ascertain anticipated tax liability and provisions of this section neither purport to substitute procedure of assessment and final quantification of tax liability. Even in cases of disclosure made by assessee, such disclosure made would not prelude enquiry into genuineness of statement or cash credit for purpose of regular assessment in connected cases. Hon'ble Supreme Court in case of Jamnaprsad kanhaiyalal vs. CIT (1981) 23 CTR (SC) 146; (1981) 130 ITR 244 (SC), indicated amongst other things that finality under s. 24(8) of finance (No. 2) Act , 1965, was to order of central board under s. 20(6) not assessment of tax made on declaration furnished under scheme. in voluntary disclosure , statement was accepted without enquiry or satisfaction disclosed amount represented income of assessee and therefore, certificate granted by s. 215 of Finance Act , 1965 (supra), would not prelude examination , although such declaration may be admissible piece of evidence but not conclusive. this is view of Hon'ble Allahabad High Court (Full Bench)in case of Pioneer Trading Syndicate vs. CIT (1979) 12 CTR (All) 349 (FB); (1979)120 ITR 5 (All) (FB) which is approved by Hon'ble Supreme Court in case of Jamnapresad Kanyalal (supra). Similar is view of Hon'ble Guahati High Court in case of Radheshyam Tiberwall vs. CIT (1980) 125 ITR 393(Gau), in which it was held on facts of that case that in assessment proceeding of voluntary declarations made and certificate granted by Commissioner, are relevant and admissible piece of evidence , but neither final nor conclusive. In recent case before us, order of WTO under s. 35 of WTA , on fact of case, narrated earlier was cancelled merely on ground that CIT under s. 132(12) of ITA has held that above sum of Rs.4.5 lacs would not be included in wealth-tax assessments for asst. yr. 1978- 79 on words as CIT presumed that such might have been spent by assessee in subsequent years. This order of CIT based on order of ITO under s. 132(50 , cannot be said to be final or conclusive in view of fact that even for asst. yr. 1982-83 , it was claimed that above sum was included in seized cash, as pointed out by WTO. Thus, in our opinion, CIT went wrong in not considering background of case noted in order of WTO under s.35 but relied entirely on order of CIT under s. 132 (12) as mentioned earlier. This order of CIT (A) cannot be sustained. WTO noted and concluded that non-inclusion of above sum was apparent mistake. On facts narrated, it is seen that amount seized at time of raid i.e., 16th July, 1981 included also amount of Rs.4.5 lacs , which had been claimed to have been received from Mr. Duggal on 30th Sept., 1976. Thus , inference of CIT that amount might have been spent was not conclusive or supported by facts on record which plainly so that case was included in seized amount which was not included in wealth-tax assessment for year under consideration. We, therefore, on facts of case are of opinion that there was mistake to original assessment order as sum was not included in net wealth of assessee and , therefore, action under s.35 by WTO was proper and justified and there could be no other opinion on this point. Hence order of CWT(A) impugned before us is reversed and that of WTO (A) is restored. We shall come now to appeal for asst. yr. 1979-80, in which first point of appeal by Revenue is similar to one which has been dealt with by us in preceding paragraphs. In assessment order made under s. 16(3), WTO narrated back ground and circumstances of case and included above sum of Rs.4.5 lacs in net wealth of assessee, which was taken by assessee before CWT(A) , who on similar reasons as for asst. yr. 1978-79, deleted addition made, in view of order of CIT under s. 132(12) of ITA. We have heard both sides for this year also. In view of what we have discussed and decided in appeal for asst. yr. 1978-79, appeal by Revenue on this point for this year as well also is allowed. order of CWT(A) is reversed and that of WTO is restored. We shall come now to other ground of appeal by Revenue regarding directions given by CWT(A) that immovable properties of assessee should be determined as per r. 1 BB of WT Rules.. we have heard both sides and we have gone through orders of authorities below us for our consideration. assessee's ld. counsel points out that this issue has been dealt with by Tribunal in case of assessee itself for asst. yr. 1972-73 to 1978-79, in which properties of assessee located at Kanpur, Mussorie and Amritsar should be valued as per r. 1BB. Following that order, we sustain direction given by CWT(A) for asst. yr. 1979-80. This ground of appeal by Revenue is rejected. In result, appeal by Revenue for asst. yr. 1978-79 is allowed and appeal for asst. yr. 1979-80 is partly allowed. *** WEALTH-TAX OFFICER v. LATE S. INDER SINGH THROUGH L/H