Shri Budheswar Doley, ITO V. Central Government

WP(C)/4347/2010

AI Insights

Shri Budheswar Doley, while serving as an Income Tax Officer, faced multiple charges under the Central Civil Services (Classification, Control and Appeal) Rules, 1965, primarily revolving around his conduct during tax assessments and surveys. The charges included arbitrary actions in tax assessments, lack of proper inquiry, and misuse of survey powers. The disciplinary authority found him guilty of Charges III, IV, and V, which related to his lack of devotion to duty and failure to maintain integrity. The Central Administrative Tribunal dismissed his appeal, leading to the current writ petition under Article 226 of the Constitution, which also did not yield a favorable outcome for the petitioner.

• Counselvise Citation: [2010] 140 COUNSELVISE.COM (IT) 801594 (HC-ASSAM)
• Appeal Type: Others
• Pronouncement Date: 10-06-2010
• Assessment Year: misc
• Laws Referred To: Central Civil Services (Classification, Control and Appeal) Rules, 1965, Income-tax Act, 1961, Administrative Tribunal Act, 1985, Constitution of India
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: M BHAGA WATI
• Assessee Lawyers: S BANIK
• Keywords: Assessment; Disciplinary action; Harassment; Income Tax Officer; Natural Justice; Survey; Vindictive motive
• Section: 144; 143(3); 154; 133A; 14; 142(2); 133B; 226(3)

Judgement Text

"WP(C) 4347/2010 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT AND ORDER (ORAL) {Ansari, J} Heard Mr. S Banik, learned counsel appearing for the petitioner, and Mr. M Bhaga wati, learned Central Govt. Counsel, appearing for the respondents. 2. The petitioner, while functioning as the Income Tax Officer, at North La khimpur, was served with a memorandum, dated 15.5.2002, informing him that an en quiry was proposed to be held against him in terms of Rule 14 of the Central Civ il Services (Classification, Control and Appeal) Rules, 1965 (in short, ’CCA Rul es’). Altogether five articles of charges were, initially, served on the petitio ner. The petitioner submitted his reply denying the charges levelled against him . The petitioner was, then, served with a supplementary charge-sheet, which cont ained one article of charge, but this article of charge contained several allega tions. The petitioner denied the allegations contained, in the article of charge , which the supplementary charge-sheet embodied. 3. As the reply of the petitioner was not found satisfactory, an enquiry wa s ordered. The enquiry was accordingly held. The enquiring authority did not fin d the Charge Nos. I and II proved; but it found the Charge Nos. III, IV and V pr oved to the extent that the petitioner had exhibited lack of devotion to his dut y. As regards the supplementary charge-sheet, the Inquiring Authority held that the charge of lack of devotion to his duty, on the part of the present petitione r, stood proved. 4. The disciplinary authority, having gone through the findings of the enqu iring authority, invited the petitioner’s comments on the findings of the enquir y. Having considered the enquiry report and the petitioner’s comments thereon, t he disciplinary authority agreed with the findings, which had been reached by th e enquiring authority, on the Charges, as indicated hereinbefore and imposed min or penalty of withholding of an increment of pay, for a period of one year, with out cumulative effect and without adversely affecting the petitioner’s pension. 5. Aggrieved by the penalty, so imposed, the petitioner preferred an appeal . As the appeal did not yield any favourable result, the petitioner filed an app lication, under Section 19 of the Administrative Tribunal Act, 1985, which gave rise to the OA No.198/2009. 6. By order, dated 10.6.2010, passed, in OA No.198/2009, by the learned Cen tral Administrative Tribunal, the learned Tribunal, having found no merit in the application, dismissed the same. Aggrieved by the order, dated 10.6.2010, afore mentioned, passed by the learned Tribunal, present writ application has been mad e, under Article 226 of the Constitution of India, by the petitioner putting to challenge the impugned order, dated 10.6.2010, passed by the learned Tribunal an d also seeking to get set aside and quashed, inter alia, the impugned order impo sing penalty on the petitioner as mentioned hereinabove as well as the orders, d ated 28/31/7/2009 and 14.2.2008, passed by the appellate authority. 7. In order to appreciate the merit of this writ petition, we reproduce her einbelow the Charge Nos. III, IV and V, as contained in the Article of Charges, which had been served on the petitioner and the findings of the enquiring author ity, on the said charges, wit reasons assigned therefor: STATEMENT OF ARTICLE•III OF CHARGE That during the aforesaid period and while functioning in the aforesaid office, the said Shri Budheswar Doley, ITO acted arbitrarily in the assessment of Shri P uma Kanta Pegu (assessee) for the A Y 1995-96 as is evidenced from the assessmen t records; acts of misconduct of which are listed hereunder. 1. The assessment proceeding has been initiated after the survey report of the I nspector dated 16-6-95. The survey so authorised was illegal as the power to sur vey Uls 133A or 133B can be exercised only at a place at which for business or p rofession is carried on; whereas in these instance case the assessee is only a s alaried person. This act confirms the allegations in other complaints received that Shri Budhesw ar Doley, ITO had arbitrarily conducted survey with view to harass and intimidat e the assessees. 2. Even if the survey is considered as an inquiry (J/s 133(6), it is illegal as there were no proceedings pending under the Income-tax Act as on that date again st Shri Puma Kanta Pegu (assessee). 3. By mentioning in the very first line of the assessment order that the survey was done by his Inspector, it appears that Shri Budheswar Doley, ITO had siniste r designs in mind so that if in the eventuality of any complaints or complicatio ns later on, he would be in a position to push the blame to his subordinate. 4. Shri B. Doley, ITO has abused the power to survey and also blatently trespass ed upon the power to search when he directed his Inspector (Shri H Rabha) to ent er inside the residential premises of the assessee and to observe and take measu rement of the building, as is evidenced by the report of the Inspector dated 04- 4-96. 5. Shri Budheswar Doley, ITO has time and again abused to power to survey when h e directed his Inspector to make enquiries at several residential houses as is e videnced from the report of the Inspector dated 16-6-95. 6. Shri Budheswar Doley, ITO made huge estimated addition towards investment in construction of the residential building belonging to the assessee, without havi ng given the assessee an inkling of the estimated method of valuation that he wa s to do. He, therefore, denied to the assessee the very basic right to be given opportunity to be heard and the right to natural justice. 7. The impugned assessment order was challenged in appeal before the Commissione r of Income-tax (Appeals), and the learned CIT (Appeal) in his order dated 07-01 -98 set-aside with directions the estimated additions in the building constructi on, and deleted the other additions. However, Shri Budheswar Doley, delayed in the giving effect to the Appellate Ord er, and further did not follow the directions while given to the effect to the A ppellate Order, thereby still raising a tax demand of Rs. 1,00,306/-. 8. Though the tax demand of Rs.1,00,306/- after giving appellate effect was wron g, yet Shri Budheswar Doley issued recovery attachment notice D/s 226(3) dated 2 7-8-98 of the Income-tax Act, 1961 to the employer of the assessee, i.e. Princip al of Dhemaji College, Dhemaji attaching an amount of Rs.3000/- per month from t he salary of the assessee, thereby causing undue harassment and humiliation to t he assessee. By all these above acts Shri Budheswar Doley, ITO has willfully contravened the following provisions of the CCS (Conduct) Rules: 3(1)(i) - Failed to maintain absolute integrity 3(1)(;;) - Failed to maintain devotion to duty 3(1 )(iii) - acted unbecoming of a Government servant. 3A(a) - in the performance of his official duties, acted in a discourteous manne r. STATEMENT OF IMPUTATION OF MISCONDUCT OR MISBEHAVIOUR Shri B. Doley had without any legal validity directed his Inspector to cause var ious enquiries and conduct survey as evident by the mention of the Inspector’s s urvey reports dated 16-6-95, 04-4-96, 16-6-95. The power to survey U/s 133A.. of the Income-tax Act is not available in the case of salaried mcome assessees. Ev en otherwise it is not permissible that surveys be carried out as residetial pre mises. Huge estimated additions have been made towards investment in the construction o f the residential building, without having given the assessee an inkling of the estimated method of the valuation that he was to do. The very basic right of the assessee to natural justice has been denied, thereby belittling the assessment orders, and causing mental agony to the assessee. Even after the CIT(A) had set- aside as well as deleted the additions made in the assessment, Shri B. Doley, IT O did not given proper effect and still raised a huge tax demand of Rs. 1,00,306 /-. To cause further injury and humiliation, he even further proceeded to attach and recover the salary income of the assessee, even though the demand was total ly and legally wrong. All the above acts show vindictiveness, high handedness and improper functioning in the discharge officer official duties and thereby, Shri B. Doley, ITO as wil lfully contravened Rules 3(1) (i), 3(1)(ii), 3(1)(iii) and 3A(a) of the CCS (con duct) Rules. 1964. FINDINGS This article of charge contain 8 paras which in turn contain allegation of misco nduct or misbehaviour against Shri Doley. These allegation are examined parawise below:. Para 1: That Shri Budheswar Doley, ITO had arbitrarily conducted survey with vie w to harass and intimidate the assessees. The IT Act does not give power to the A.O. to take measurement of a residential house explicitly. At the same time taking measurement of a house the Assessing O fficer is not prohibited either (certain actions such as removal of cash during survey u/s 133A is prohibited by the I.T. Act). U/s 142(2), the A.O. may make su ch inquiry as he considers necessary. Therefore, if the dimension of a house is taken for the limited purpose of estimating the cost of construction without any violation of privacy, it can not be treated as a serious case of excess. P.K. P egu not aware of any survey conducted (Ref to Answer to Q. No. 3 of his statemen t recorded on 08-02-2006). This indicates that inconvenience caused to him, if a ny, when his house was being measured was very little. Para 2. Even if the survey (in the residence of Shri P.K Pegu) is considered as an inquiry U/s 133(6), it is illegal as there were no proceedings pending under the Income-tax Act as on that date against Shri Puma Kanta Pegu (assessee). Shri Doley has not taken the plea that it was enquiry conduced u/s 133A. Therefo re, there is no need to go into this charge. Para 3 That Shri B. Doley, ITO had mention that the survey was done by his Inspe ctor with sinister designs in mind. The allegation far fetched and could not be proved. Para 4. That Shri B. Doley, ITO abused to power to survey and also blatently tre spassed upon the power to search. It is true that one survey report by Shri H. Rabha has been mentioned by Shri Do ley in his assessment order. But exactly what was done during the Survey is no t clear. It is also not clear whether Shri Rabha entered the house of Shri Pegu. The department could not produce the relevant assessment records. It appears th at Shri Rabha merely took measurement of the house without causing much inconven ience to Shri P.K. Pegu. It is further seen from that statement of Shri P.K. Peg u that he was not aware of any survey conducted in his house (Please refer toans wer to Qn. No.3 of his statement recorded on 08-02-2006). This indicates that in convenience caused to him, if any, when his house was being measured was very li ttle. Para 5: That Shri Budheswar Daley, ITO has time and again abused to power to sur vey when he directed his Inspector to make enquiries at several residential hous es as is evidenced from the report of the Inspector dated 16-6-95. The department could not produced the report of the inspector dtd. 16-06-1995 on which it sought to rely. But it does appear from the statement of Shri R.K. Sin gh, ITI dtd. 10-02-2006 recorded in the course of the procedings that measuremen t of house was taken in other cases also. But it also appears that there was no serious invasion of privacy while such measurement was taken. It is further seen from that statement of Shri P.K. Pegu that he was not aware of survey conducted in his house (Please refer to answer to Que. No. 3 of his statement recorded on 08-02-2006). This indicates that inconvenience caused him if any when his house was being measured was very little. Para 6. Shri Budheswar Doley, ITO made huge estimated addition towards investmen t in construction of the residential building belonging to the assessee, without having given the assessee an inkling of the estimated method of valuation that he was to do. He, therefore, denied to the assessee the very basic right to be g iven opportunity to be heard and the right to natural justice. The department could not produce the relevant assessment records. But it is clea r from the assessment order that Shri Doley did not provide the assessee opportu nity of being heard on many major issues. For example, while making addition on investment of house property, Shri Doley did not call for assessee’s explanation on the issue though substential additions were made on this point. Shri Doley d enied to the assessee the very basic right of opportunity of being heard and the right to natural justice. As a quasi judicial authority, it was his duty to ens ure that the basic principles of justice are not violated. The omission is clear ly attributable to casual attitude on the part of Shri Doley. In failing to ensu re that, he exhibited lack of devotion to his duty. Para 7. The impugned assessment order was challenged in appeal before the Commis sioner of Income-tax (Appeals), and the learned Cl’I’ (Appeal) in his order date d 07-01-98 set-aside with directions the estimated additions in the building con struction, and deleted the other additions. However, Shri Budheswar Doley, delay ed in the giving effect to the Appellate Order, and further did not follow the d irections while given to the effect to the Appellate Order, thereby still raisin g a tax demand of Rs. 1,00,306/-. The Department could not produce the relevent assessment records. It could not s tate when the appellate order was received by Shri Doley and the date on which i t was given effect to. Nor could it be established that the directions of the CI T(A) were not followed while giving effect to the Appellate Order in absence of records. The P.O. argued that that the directions of the CIT(A) were not followe d can be inferred from the quantum of demand that still remained after appeal e ffect was given. In my view, though it does appear that the directions of the C IT(A) were not followed, it is not possible to draw any such inference conclusiv ely. Para 8. Though the tax demand of Rs. 1,00,306/- after giving appellate effect wa s wrong, yet Shri Budheswar Doley issued recovery attachment notice D/s 226(3) d ated 27-8-98 of the Income-tax Act, 1961 to the employer of the assessee, i.e., Principal of Dhemaji College, Dhemaji attaching an amount of Rs. 3000/- per mont h from the salary of the assessee, thereby causing undue harassment and humiliat ion to the assessee. The A.O. cannot be faulted for attaching the salary. Whether or not the demand w as based on proper facts was besides the point. Shri Doley was merely following the Departmental policy on recovery in what was obviously a dossier case. To sum up, I am of the view that Shri Doley denied to the assessee the very basi c right of opportunity of being heard and the right to natural justice. As a qua si judicial authority, it was his duty to ensure that the basic principles of ju stice are not violated. In failing to ensure that, he exhibited lack of devotion to his duty. The other charges are not proved. STATEMENT OF ARTICLE-IV OF CHARGE That during the aforesaid period and while functioning in the aforesaid office t he said Shri Budeswar Doley, ITO, acted arbitrarily and capriciously in the asse ssment of Shri Bhaben Ch. Pegu (assessee) for the A Y 1994-95 as evidenced from the assessment records. The acts of misconduct of which are listed hereinunder : 1. Shri B. Doley, ITO abused and over-stepped the power to survey when he direct ed his Inspector to cause enquiry, as evidenced from the Inspector’s report date d 06-6-95, and also required Shri B. C. Pegu to furnish various details of asset s as evidenced from the proforma that was asked to be submitted by Shri Pegu dat ed 07-6-95. 2. Shri B. Daley, ITO had caused enquiries into the properties without ascertain ing and verifying from the past income-tax records, as has been the allegation i n several complaints received against him, thereby causing undue harassment to t he taxpayers. 3. Shri B. Doley, ITO initiated the assessment proceeding in the case of Shri B. C. Pegu (assessee) for the AY 1994-95 by issuing of notice U/s 142(1) dated 27- 7-95/02-8-95 of the LT. Act, 1961 calling for return of income to be filed. Thou gh he has used a standard departmental form to issue the notice, yet he had not applied his mind in that the items not applicable were not struck off. This woul d hare created confusion to the assessee. 4. Shri B. Doley, ITO, has misused and over-stepped the power to survey whe n he directed his Inspector to enter the building of the assessee, and also to enter the residential house of the assessee and to observe a layout, nature of c onstruction, and to take measurements and also to estimate the value of the cons truction, as is evidenced by the inspection report dated 12-10-96. 5. Shri B. Doley, ITO passed the assessment order on 01-12-96 and has made arbitrarily high-pitched assessment by simply estimating cost of construction of the building, and estimated cost of land as per his whims and fancies. There do es not appear in the records any prior intimation to the assessee of his intende d basis for estimated valuation. Shri B. Doley, ITO has, therefore, denied the a ssessee the opportunity to be heard on the issue, and the right to natural justi ce. Because of this act in the assessment order, high income-tax demand of Rs.9,87,1 96/- was raised on the assessee causing the assessee undue mental pressure and a gony. 6. The assessee, being a layman, and having been taken aback by such high p itched assessment, submitted a detailed revised petition dated 29-12-96 seeking for review of the income-tax assessment. As the subject matter and reasoning wer e not within the purview of even a rectification, Shri B. Doley should have advi sed the assessee that the proper procedure was to approach the ’appropriate high er statutory authorities by filing appeal U/s 246 before the CIT(A) or to file f or revision petition U/s 264 before the CIT. 7. Shri B. Doley, ITO did not choose or advise the assessee properly and instead after the assessment has been completed, in the name of rectification, he condu cted and caused detailed enquiries trespassing beyond his statutory jurisdiction and thereby causing further mental agony to the assessee. 8. Shri B. Doley, ITO, again abused and over stepped the power to survey when he deputed his Inspector (Shri Rajkumar Singha) to visit and enter the building pr emises belonging to the assessee, and to take measurements, as evidenced from th e Inspector’s report dated 16-01-97. 9. Shri B. Doley, ITO has over-exceeded his power as an assessing officer in the rectification order passed dated 01-7-97, as none of the issues were mistakes apparent from records . 10. Although the assessment was high pitched and undue harassment has been c aused in the process, yet Shri B. Doley, ITO caused further humiliation by sendi ng a recovery attachment notice U/s 226(3) of the 1 T. Act, 1961 to the employer of the assessee, i.e. the Principal, Dhemaji College, Dhemaji I I. Shri B. Doley, ITO had made enquiries and correspondences with the Branch M anager, United Bank Of India, Dhemaji. The style and manner ill which he has con veyed his correspondences with the bank official is improper and not expected of , in official communications, as evidenced vide his letter dated 27-6-97 sent to the Bank Officer. 12. The impugned assessment order was challenged in appeal before the CIT(A) and the learned CIT(A) vide his order dated 10-12-98 had observed the high-handedne ss and arbitrary manner of the assessment that had been done by Shri B. Doley, I TO by remarking in the appellate order :1 feel that the A.O should have consider ed the appellant past assessment records especially when he was considering inve stment made in buildings, lands, etc by the appellant in the past and in failing to do so, he had failed to do justice to the appellant . By the above act of misconduct and misbehaviour, Shri B. Doley, ITO has willfull y contravened the following Rules of the CCS (Conduct) Rules, 1964 viz: 3(1)(i) - Failed to maintain absolute integrity 3(1)(;;) - Failed to maintain devotion to duty 3(1 )(iii) - acted unbecoming of a Government servant. 3A(a) - in the performance of his official duties, acted in a discourteous manne r. STATEMENT OF IMPUTATION OF MISCONDUCT OR MISBEHAVIOUR (in the assessment of Shri B.C. Pegu) Here too, Shri B. Doley had abused and over-stepped the power to cause enquiries and conduct surveys, as is evident by the Inspector’s reports dated 06-6-95, 12 -10-96, 16-01-97. The power to cause survey is not available in case of salaried income assessees. Also it is not permissible to enter residential houses, not t o speak taking measurement and to estimate the value of construction. Even though there were no proceedings under the Income-lax Act as on 06-6-95 aga inst Shri Bhaben Ch. Pegu yet Shri B. Doley. ITO violated statutory powers under the LT Act arid required Shri Bhaben Ch. Pegu to furnish details regarding his assets, investments made, on sources of income for several years even since 1965 . The violation is evident as there does not appear to be any written communicat ion addressed to Shri Bhaben Ch. Pegu requiring him to do so, nor any mention of the exercise under any particular provision of the IT Act. The entire exercise seems to hare been verbal, until Shri Bhaben Ch. Pegu was made to submit the det ails in writing. Though Shri B. Doley, ITO without much hesitation causes enquiries to be made an d surveys to be conducted, yet in issuing simple statutory notice U/s 142(1) he does not apply his mind to delete the inapplicable portions, and therefore, the options/ requirements in the standard form being many, a lot of confusion and in comprehension would have arose in the mind of Shri Bhaben Ch. Pegu on receiving the notice. No inkling of the method of estimation to be adopted in the assessment, was give n to Shri Bhaben Ch Pegu and therefore, denying right to proper opportunity and the right to natural justice. This most crucial as huge addition were made raisi ng the huge income-tax demand of Rs.9,87.196/-. Shri B. Doley even after having passed the high pitched assessment order started even to transgress upon the statutory jurisdiction of the CIT and CIT(A) by not properly advising the assessee to file revision/appeal, and instead he choose t o treat as rectification, and in the process got further occasion to cause furth er enquiries and surveys. Shri B. Doley, rro does 110t re-examine the assessment made by him, and is very quick to use his powers by sending attachment and recovery notices U/s 226(3) of I.T. Act. In his correspondences with the Branch Manager. United Bank of India, Dhemaj, he calls clarification of matters of several years ago, of which the then incumben t Branch Manager could not have been possibility aware of The language use in th e correspondences is also unbecoming of official communication as is evident in the letter dtd. 27-6-97. Shri B. Doley has asked 10 Shri Bhaben Ch. Pegu to furnish details of his assets and investments some 25 years back even since 1965. This would have been imposs ible for Shri Bhaben Ch. Pegu. Shri Doley does not hesitate to ask the assessee for details and records of decades together but when it comes 10 himself he does n’t even bother to find from own office records the available details of only a few years back in order to ascertain his suspicion about the assesses assets. Sh ri B. Daley did not practice nor exhibits even a fraction of what he a expected others to do. By the above acts of mis-conduct and mis-behaviour Shri B. Doley, JIO had failed to maintained integrity, failed to maintained devotion to duty, a cted of an unbecoming of Government servant, in the performance of official duti es acted in a discourteous matter, thereby contravening Rules 3(1)(i), (ii), (ii i) and 3A(a) of the CCS (Conduct) Rules, 1964. FINDINGS This article of charge contain 12 paras which in turn contain allegation of misc onduct or misbehaviour against Shri Doley. These allegation are examined parawis e below (paras 6,7,8 & 9 are considered together) : Para 1. Shri B. Doley, JIO abused and over-stepped the power to survey when he d irected his Inspector to cause enquiry, as evidenced from the Inspector’s report dated 06-6-95, and also required Shri B. C Pegu to furnish various details of a ssets as evidenced from the proforma that was asked to be submitted by Shri Pegu dated 07-6-95. The department could not produce the Inspector’s report dated 06-6-95 on which i t sought to rely. Nor could the Department state what were the directions given by Shri Doley to the Inspector. The assessment order does mention a survey repor t by an Inspector. But, what exactly was done during the ’survey’ is not clear. It appears that the Inspector merely took external measurements of the house. The IT Act does not give power to the A.O. to take measurement of a residential house explicitly. At the same time taking measurement of a house the Assessing O fficer is not prohibited either ( certain actions such as removal of cash during survey u/s 133A is prohibited by the I.T. Act). U/s 142(2), the A.O. may make s uch inquiry as he considers necessary. Therefore, if the dimension of a house is taken for the limited purpose of estimating the cost of construction without an y violation of privacy, it can not be treated as a serious case of excess. As regards requiring Shri B. C. Pegu to furnish various details of assets, it is not clear whether or not the details were called for by Shri Doley. There appea rs to be no written requisition by Shri Doley. It is possible that the assessee submitted those details on his own. Para 2. Shri B. Doley. ITO had caused enquiries into the properties without asce rtaining and verifying from the past income-tax records, as has been the allegat ion in several complaints received against him, thereby causing undue harassment to the tax payers. The Department could not give specific instance where details which were availab le on records were called for by Shri Doley. Para 3. Shri B. Doley, I.T.O initiated the assessment proceeding in the case of Shri B. C. Pegu (assessee) for the AI’ 1994-95 by issuing of notice U/s 142(1) d ated 27-7-95/02-8-95 of the LT. Act, 1961 calling for return of income to be fil ed Though he has used a standard departmental form to issue the notice, yet he h ad not applied his mind in that the items not applicable were not struck off. Th is would have created confusion to the assessee. The department could not produce the relevant notice. In any case, failure to st rike off the not applicable portions cannot be considered a serious omission. Para 4. Shri B. Doley, ITO, has misused and over-stepped the power to survey whe n he directed his Inspector to enter the building of the assessee, and also to e nter the residential house of the assessee and to observe a layout, nature of co nstruction, and to take measurements and also to estimate the value of the const ruction, as is evidenced by the inspection report dated 12-10-96. The department could not produce the Inspector’s report dated 12-10-95 on which it sought to rely. Nor could the Department state what were the directions given by Shri Doley to the Inspector. The assessment order does mention a survey repo rt by an Inspector. But, what exactly was done during the ’survey’ is not clear. It appears that the Inspector merely took external measurements of the house. The IT Act does not give power to the A.O. to take measurement of a residential house explicitly. At the same time taking measurement of a house the Assessing O fficer is not prohibited either ( certain actions such as removal of cash during survey U/S 133A is prohibited by the LT. Act). U/s 142(2), the A.O. may make su ch inquiry as he considers necessary. Therefore, if the dimension of a house is taken for the limited purpose of estimating the cost of construction without any violation of privacy, it can not be treated as a serious case of excess. Para 5. Shri B. Doley, ITO passed the assessment order on 01-12-96 and has made arbitrarily high-pitched assessment by simply estimating cost of construction of the building, and estimatedcost of land as per his whims and fancies. There doe s not appear in the records any prior intimation to the assessee of his intended basis for estimated valuation. Shri B. Doley, ITO has, therefore, denied the as sessee the opportunity to be heard on the issue, and the right to natural justic e. Because of this act in the assessment order, high income-tax demand of Rs.9,87,1 96/- was raised on the assessee causing the assessee undue mental pressure and a gony. The department could not produced the relevant assessment records. But it is cle ar from assessment order that Shri Doley did not provide the assessee opportunit y of being heard on many major issues. For example, while making addition on inv estment/aquisition of immovable properties, Shri Doley did not call for assessee ’s explanation on the issue though huge additions were made on these points. Shr i Doley denied to the assessee the very basic right of opportunity of being hear d and the right to natural justice. As a quasi judicial authority, it was his du ty to ensure that the basic principles of justice are not violated. In failing t o ensure that, he exhibited lack of devotion to his duty. Paras 6,7,8,& 9. The assessee, being a layman, and having been taken aback by su ch high-pitched assessment, submitted a detailed revised petition dated 29-12-96 seeking for review of the income-tax assessment. As the subject matter and reas oning were not within the purview of even a rectification, Shri B. Doley should have advised the assessee that the proper procedure was to approach the appropri ate higher statutory authorities by filing appeal U/s 246 before the CIT(A) or t o file for revision petition U/s 264 before the CIT. Shri B. Doley, ITO did not choose or advise the assessee properly and instead af ter the assessment has been completed, in the name of rectification, he conducte d and caused detailed enquiries trespassing beyond his statutory jurisdiction an d thereby causing further mental agony to the assessee. Shri B. Doley, ITO, again abused and over stepped the power to survey when he de puted his Inspector (Shri Rajkumar Singha) to visit and enter the building premi ses belonging to the assessee, and to take measurements, as evidenced from the I nspector’s report dated 16-01-97. Shri B. Doley, ITO has over-exceeded his power as an assessing officer in the re ctification order passed dated 01-7-97, as none of the issues were mistakes app arent from records . It is seen from records that in purported exercise of his power u/s l54 of the I .T. Act, 1961, Shri Doley got a building measured by his Inspector and also coll ected information from its tenant and then recomputed its cost of construction, By this act, Shri Doley has clearly exceeded his power as an assessing Officer. 10 Although the assessment was high pitched and undue harassment has been caused in the process, yet Shri B. Doley, ITO caused further humiliation by sending a recovery attachment notice U/s 226(3) of the I. T. Act, 1961 to the employer of the assessee. i.e. the Principal. Dhemaji College. Dhemaji. The A.O. cannot be faulted for attaching the salary. Whether or not the demand w as based on proper facts was besides the point. Shri Doley was merely following the Departmental policy on recovery in what was obviously a dossier case. 11. Shri B. Doley, ITO had made enquiries and correspondences with the Branch Ma nager. United Bank Of India, Dhemaji. The style and manner ill which he has conv eyed his correspondences with the bank official is improper and not expected of, in official communications, as evidenced vide his letter dated 27-6-97 sent to the Bank Officer. The department could not produce the relevant. 12. The impugned assessment order was challenged in appeal before the CIT(A) and the learned CIT(A) vide his order dated 10-12-98 had observed the high-handedne ss and arbitrary manner of the assessment that had been done by Shri B. Doley, I TO by remarking in the appellater order: I feel that the A.O should have consid ered the appellant past assessment records especially when he was considering in vestment made in buildings, lands, etc by the appellant in the past and in faili ng to do so, he had failed to do justice to the appellant . The Department could not furnish any example where Shri Doley failed to consider any fact which was available in the Assessment records of earlier years. To sum up, I am of the view that Shri Doley denied to the assessee the very basi c right to be given opportunity to be heard and the right to natural justice. As a quasi judicial authority, it was his duty to ensure that the basic principles of justice are not violated. In failing to ensure that, he exhibited lack of de votion to his duty. Further, Shri Doley blatently exceeded his powers as an asse ssing Officer while passing an order u/s 154 of the LT. Act. Here again, he exhi bited lack of devotion to his duty. The other charges are not proved. STATEMENT OF ARTICLE-V OF CHARGE That during the aforesaid period and while functioning in the aforesaid office, the said Shri B. Doley, ITO acted upon and initiated proceedings with vindictive motive against Shri Bikash Das (Proprietor of M/s Beauty Stores), Dhemaj, as is mentioned hereunder: 1. Due to not conceeding to a price bargain which Shri B. Doley, ITO wanted as c ustomer, Shri B. Doley, ITO then misused, with vindictive intention, the power t o survey by conducting survey at the shop premises on 01-11-96; even though as a n Income-tax authority he should have been aware that the shop being quite small in size, a survey was not at all warranted. The conduct of the survey was spite ful and with vindictive motive to humiliate Shri Bikash Das. 2. Shri B. Doley, ITO further initiated proceedings by issuing notice dated 09-0 1-97 U/s 142(1) of the Income-tax Act calling for the return of income to be fil ed Even while issuing the notice he did not apply his mind in that the irrelevan t portion of the form were not struck of, and this would have created confusion in the mind of Shri Bikash Das. 3. Shri B. Doley, ITO had misused the powers U/s 142(1) in that after initiating the proceedings, he simply dropped the proceedings on 29-04-97 on receiving a l etter from Shri Bikash Das that he would not be having any taxable income. This indicates that Shri B. Doley, ITO misused the power U/s 142(1) to achieve his vi ndictive motive against Shri Bikash Das and once the motive was achieved, the pr oceedings were dropped as there was no other reason to have conducted the survey . By all these above acts Shri B. Doley, ITO has willingly contravened the followi ng provisions of the CCS (Conduct) Rules, 1964 : 3(1)(i) - Failed to maintain absolute integrity 3(1)(ii)- Failed to maintain devotion to duty 3(1 )(iii) - acted unbecoming of a Government servant. 3A(a) - in the performance of his official duties, acted in a discourteous manne r. STATEMENT OF IMPUTATION OF MISCONDUCT OR MISBEHAVIOUR The survey conducted on 01-11-98 was vindictive as a result of the price bargain ing that Shri B. Doley, ITO wanted as customer. There was no reason to conduct s uch a survey. Even the initiation of proceedings by issue of notice U/s 142(1) w as unwarranted This is apparent as eventually the proceedings had to be dropped Shri B. Daley, ITO had thus failed to maintain absolute integrity devotion to du ty, acted unbecoming of a Government servant, and in the performance of his offi cial duties acted in a discourteous manner, thereby contravening Rules 3(1)(i), (ii), (iii) and 3A(a) of the CCS (conduct) Rules, 1964 in this instant case also . FINDINGS This article of charge contain 3 paras which in turn contain allegation of misco nduct or misbehaviour against Shri Doley. These allegation are examined parawise below: Para 1. Due to not conceeding to a price bargain which Shri B. Daley, ITO wanted as customer, Shri B. Daley, ITO then misused. with vindictive intention, the po wer to survey by conducting survey at the shop premises on 01-11-96; even though as an Income-tax authority he should have been aware that the shop being quite small in size, a survey was not at all warranted. The conduct of the survey was spiteful and with vindictive motive to humiliate Shri Bikash Das. The statement of Shri Bikash Das was recorded during the proceedings. In his sta tement, he did not make any complaint against Shri Doley. Earlier, on 26/10/1998 , his version of the events were recorded by the Addl. CIT . The relevant portio n of the order sheet is reproduced below: Sometime before Durga Puja in 1996, Shri Doley came to my shop as customer to p urchase a toy car for his child. The price quoted was R.140/- and he bargained a nd wanted to pay Rs.100/-. He finally revealed his identity and status and paid Rs. 100/-for his toy car. After about 20 days he came with his staff members and carried out survey of my shop. After about one month I received a notice from t he ITO to filed return of income. I verbally sought one years time for filing of the return Slating that I had started the shop in 1994 and was not earning enou gh income to be liable for tax. I have finally filed the return in February or M arch, 1998. My A/R is Shri Jaswant Singh. During the survey and thereafter also the ITO Shri Doley did not demand any money nor I have paid him any . The department’s contention is that Shri B. Doley conducted a survey with vindic tive intention due to Shri Bikash Das not conceeding to a price burgain which Sh ri Doley wanted. But from the statement of Shri Bikash Das recorded on 26-10-199 8, it is seen that Shri Bikash Das had actually conceeded to the price burgained when Shri Doley purchased the toy. Further the survey was otherwise as per law. Thus, he charge that the survey was conducted in the vindictive manner is not p roved. Para 2. Shri B. Doley, ITO further initiated proceedings by issuing notice dated 09-01-97 U/s 142(1) of the Income-tax Act calling for the return of income to b e filed Even while issuing the notice he did not apply his mind in that the irre levant portion of the form were not struck of, and this would have created confu sion in the mind of Shri Bikash Das. The omission to strike off the in applicable portion of the notice can not be tr eated as a serious act of omission. Para 3. Shri B. Doley, ITO had misused the powers U/s 142(1) in that after initi ating the proceedings, he simply dropped the proceedings on 29-04-97 on receivin g a letter from Shri Bikash Das that he would not be having any taxable income. This indicates that Shri B. Doley, ITO misused the power U/s 142(1) to achieve h is vindictive motive against Shri Bikash Das and once the motive was achieved, t he proceedings were dropped as there was no other reason to have conducted the s urvey. Shri Doley erred in dropping the proceedings on receiving a letter from Shri Bik ash Das that he would not having taxable income. There is no provision for dropp ing the proceedings after notice u/s 142( I) was issued. By this wrong action, S hri Doley exhibited lack of devotion to his duties. However, the allegation that Shri B. Doley, ITO misused the power U/s 142(1) to achieve his vindictive motiv e against Shri Bikash Das is not proved because the department could not establi sh then Shri Doley had reason to be vindictive. To sum up, it was found that Shri Doley dropped the proceedings after issuing th e notice u/s 142(1). No motive, however, could be established for this act. I, therefore hold that the mistake occurred due to his failure to maintain devotion to his du ty. The other charges are not proved. 8. What emerged, in respect of Article III of the Charge, was that the peti tioner had made estimated additions towards investment in the construction of th e residential building, in question; but before making such an addition, the pet itioner did not provide the assessee with any opportunity of showing cause or he aring, though substantial additions had been made in the earlier assessment by t he present petitioner. Even the assessee’s comments, on the proposal to make new ly estimated additions towards investment in the construction of the residential building, in question, had not been called for by the petitioner. 9. In short, the petitioner, as rightly concluded by the enquiring authorit y, denied to the assessee the very basic right of being heard and the right of n atural justice. The enquiring authority observed that since the petitioner had e xercised quasi-judicial authority, it was his duty to ensure that the basic prin ciples of natural justice were not violated and that the omission, on the part o f the petitioner, was clearly attributable towards his casual attitude and there by his lack of devotion to duty stood proved. 10. In respect of Article IV of the Charge, the enquiring authority found th at the petitioner did not provide the assessee any opportunity of being heard on many major issues, such as, huge addition to the amount of investment, which wa s alleged to have been made in the construction of building, and without calling for any explanation or comments from the assesse or without serving any notice to show cause on the assessee. 11. The enquiring authority, therefore, concluded, in respect of Article IV of the Charge, that the petitioner had not only violated the basic principles of natural justice, but he had also blatantly exceeded his powers as an Assessing Officer, while making assessment, under Section 154 of the IT Act, and exhibited thereby lack of devotion to his duties. 12. So far as the Charge No.V is concerned, the allegation against the petit ioner was that the petitioner had gone to the shop of a person, namely, Shri Bik ash Das, as a customer, to purchase a toy car, the price of the car being Rs.140 . The petitioner disclosed his identity and wanted to pay Rs.100/- for the toy c ar. This clearly shows that the petitioner, being a customer, attempted to put p ressure on the shopkeeper by making him reduce the price on the basis of his ide ntity, which the petitioner had disclosed to the shop-keeper as the Income Tax O fficer of the area concerned. After twenty days, thereafter, the petitioner came to the shop premises of Shri Bikash Das, carried on survey of the shop with the help of his staff and a month thereafter, Shri Bikash Das received notice, issu ed by the petitioner, for filing of return of income tax. Shri Das sought for ti me to file his return after one year and the petitioner, without assigning any r eason whatsoever, accepted the request, though there is no provision for droppin g the proceeding in the manner as had been done by the petitioner, when the noti ce, under Section 142(1) of the Income Tax Act, had already been issued. The enq uiring authority, therefore, concluded that the petitioner exhibited lack of dev otion to his duty. 13. Because of what have been observed and concluded by the enquiring author ity on the Charge Nos. III, IV and V, which were served on the petitioner, the d isciplinary authority, in our considered view, was wholly correct in accepting t he findings of the enquiring authority and the appellate authority committed no error, legal or factual, in agreeing with the findings of the disciplinary autho rity. 14. As regards the Supplementary Charge-sheet, it has been already indicated above that there was only one Article of Charge. This Article of Charge read a s under: That the said Shri Budheswar Doley, Income-tax Officer, while functioning as IT O. Ward-North Lakhimpur, Assam for the period for the period from 26.05.95 to 21 .09.98, while making assessments u/s 143(3) or 144 of the IT Act, 1961, failed t o conduct proper inquiry and investigation. In some cases he did not obtain any information from the assessee and did not scrutinize the books of accounts in so me cases. In the cases, where information were obtained, he failed to utilize th e same in proper manner and disposed of cases in a lackadaisical manner. By the aforesaid act of omission and commission, Shri Budheswar Doley failed to maintain absolute integrity and also showed lack of devotion to duty and exhibit ed conduct unbecoming of a government servant in terms of Rules 3(l((i), 3(1)(i i) and 3(1)(iii) of the CCS (Conduct) Rules. 1964. 15. Under the above Article of Charge, there were as many as six allegations . In respect of the allegations, which had been made against the petitioner, th e findings of the enquiring authority and the ultimate conclusion, which had bee n reached by the enquiring authority, are reproduced below: Allegation 1. In almost all the cases Returns were not filed within the due dat es. There was abnormal delay in some cases. In some cases, there was no response to the notice issued u/s 148 or 142(1). In most of the cases, the assessee did not respond to notice u/s 143(2). But for such lapses, no action was initiated b y Shri Doley. My findings: There is no provision for taking action in case of delayed filing o f return. Therefore, it is not correct to charge Shri Doley of inaction on this point. It is seen that there was non compliance on the part of the assessee to n otice u1s 148 by M/s Gupta Brothers (AY.l994-95). There were non-compliances to notices U/S 142(1) by M/s Gupta Brothers (AY.l994-95). M/s Laxminarayan Agarwall a & Sons (A.Y. 1995-96), Shri Sushil Kumar Agarwalla (AY.l994-95) and Sudhir Dut ta (AY. 1995-96). Further there were non-compliances to notice u1s 143(2) by M/s Laxminarayan Agarwalla & Sons (1995-96), Sushil Kr. Agarwalla (1994-95). Lala A garwal (1996-97) and Sudhir Dutta (1995-96). Shri Doley did not initiate penalty proceedings in any of these cases for non compliance. Shri Doley in his submission in the course of the inquiry replied that he was no t aware that penalty proceedings can be initiated in such cases. I find his expl anation totally unacceptable. Since the Act provides for penalty In such cases, Shri Doley should have initiate penalty proceedings. Allegation 2. In most of the cases, Shri Doley issued notices u/s 143(2) and I42 (1) simultaneously and in all such cases a common requisition with a rubber stam p impression on the back side of notice us 142( 1J was made. But at the time of hearing. except one or two cases, no details/ information were .obtained. Shri D oley recorded the proceedings in the order sheet. In all normal scrutiny cases, some basic particulars, like - bank accounts with ac no. branch name of the hold er etc. particulars of assessee’s properties/ assets/ investments. list of debto rs and creditors are obtained which may help for future recover. But Shri Doley did not make any such attempt. Most of the cases were disposed of after single b rief hearing. Emphasis was given about this in Instruction No. 1937 to collect t hat information in course of assessment proceedings. My findings: Shri Doley, in the course of the inquiry submitted that some assess ments were disposed off in a single hearing because those were simple and small cases. He maintained that inquiry done by him was adequate considering the natur e of the cases. He also stated that Bank accounts were checked as he deemed proper and necessary. I find nothing wrong in issuing notice u/s 142(1) and 143(2) simultaneously. As regards the other allegations, I find that the except in one or two cases, no d etails/information was obtained. Even basic details such as particulars of bank. accounts, particulars of assets and investments, list of debtors and creditors were not obtained. Out of 26 assessments which were examined, at least 7 (seven) cases were disposed off in a single hearing (M/s Loknath Dresses, Malchand Mahe shwari, Anupama Majumdar, Pawan Kumar Sarda, Parsuram Sharma, Lalita Devi Mahesh wari and Sukhan Dutta). Though Instruction No. 1937 dt.2S/0311996 makes it manda tory for obtaining particulars of assets including name and address of the debto rs, bank a/c, bank deposits etc., Shri Doley made no attempt to collect these de tails in most cases. I, therefore, find that his submissions are not supported b y the records and the allegations are correct. Allegation 3. Even. in the cases scrutinised for the first time, no basic inform ation was obtained. Normally in a new case, where scrutiny is made for the first time, the opening capital of the assessee, his activities, properties. investme nt, size of the family, withdrawals, children education. Tour & travels etc. ar e examined But Shri Doley did not examine the mailer. In case of M/s Loknath Dre sses, both the partners claimed to have contributed stock as their capital along with cash. but no stock inventory was examined, no question was asked on the mo de of valuation of such stock: My findings: Shri Doley, in submission during the inquiry stated that he did exa mine the Capital Account in all cases where scrutiny was done for the first time including the case of M/s Loknath Dresses. and therefore the allegation was wro ng. I find from the examination from records that out of the cases which were inspec ted, some were scrutinised for the first time. Example of such cases are: (i) Loknath Dresses A.Y. 1996-97 (ii) Bansilal Lahoti (HUF) A.Y. 1996-97 (iii) Sushil Kumar Agarwalla A.Y. 1994-95 (iv) Md. Mobin A.Y. 1995-96 Since these were scrutinised for the first time it was necessary to bring basic information about the assessee such as activity of the assessee, his properties and investment, size of his family (where applicable), withdrawals, children edu cation (where applicable) etc. on record. But it was not done. Thus, he failed t o do the ground work for carrying out investigation in these cases. In case of L oknath Dresses, both the partners claimed to have contributed stock as their cap ital along with cash, but no stock inventory was examined. Nor was any question was asked on the mode of valuation of closing stock. I, therefore, find that the claim of Shri Doley that the Capital Accounts were examined is not supported by records. Allegation 4. In most of the cases the assessee did not maintain any book of acc ounts. In such cases, the examination of the assessee’s assets, bank accounts et c. were very much necessary but Shri Doley failed to do so. In some of the cases , (he expenditure, net profit, even the turnover was estimated. But Shri Doley d id not ask any question regarding the basis of such estimation. Some of the case s were capital building cases and to regularise the ill-gotten money of the asse ssee utilising the Income tax channel. The case of Lalita Devi Maheshwari, Paras ram Sharma. Sheikh Rasul and the examples of such cases. Within one year the ass essee, a State Govt. Employee, Sheikh Rasul deposited Rs. 7. 70 lakh cash in a b ank whose gross salary for the year was only Rs.70,128/-. At the time of assessm ent, the assessee claimed to have received gift from different parries. Without proper verification the same was accepted by Shri Doley. My findings: In the course of inquiry Shri Doley submitted that most of the case s were books of accounts are not maintained, the assessee appeared themselves du ring hearing and when asked to give details of their assets, they replied that t hey had no properties except investment in the business. He stated that in the c ase of Sheikh Rasul, the source of the deposits in the bank were found to be sat isfactorily explained. I have examined the allegations and the submissions of Shri Doley. I find that i n large number of cases no books of accounts were maintained. Such cases are lis ted as below: Name of the assessee A.Y. Gupta Brothers 1994-95 [)Okllath Dresses 1996-97 Banshilal Lahoti 1996-97 Malchand Maheshwari 1995-96’ Inderchand Jain & Co. 1995-96 Sushil Kr. Agarwalla 1994-95 Anupama Majumdar 1996-97 Anil Kr. Srivastav 1996-97 Pawan Kr. Sarda 1996-97 lzhar Hussain 1995-96 Rahim Talukdar 1995-96 Sudhir Dutt 1995-96 Parasram Sarma 1996-97 Lalita Devi Maheshwari 1995-96 In such cases the examination of assessees assets, bank accounts etc. was very m uch necessary but Shri Doley failed to do so. In some of the cases the expenditu re, net profit, even the turn over is estimated but the Shri Doley did not ask a ny question regarding the basis of such estimation. Shri Doley’s claim that he inquired about the assets of the assessees is not sup ported by the records. In case of Shri Sheikh Rasul who is a State Govt. Employee, whose salary for the year was only Rs.70.128/-, it was found that the assessee deposited Rs.7.70 lak hs in cash in a bank. At the time of assessment the assessee claimed to have rec eived gift from different parties. The same was accepted by Shri Doley merely on the basis of gift deeds without proper verification. Shri Doley did not examine the capacity of the purported donor to pay the amount and also the genuineness of the transaction. In my view, Shri Doley failed to apply his mind and act in a judicious manner in this case. Allegation 5. It was found that in some cases, even the document filed with the return were not properly examined and cross verified Had the assessee filed the details along with the return would have found various discrepancies some of whi ch are mentioned below: (i) Mahavir Transport Co., submitted one TDS certificate after submission of ret urn. Shri Doley considered the TDS and allowed refund of Rs. 1,08,8361-. If the income reflected in the TDS certificate was considered, then instead of refund, huge demand have been raised. (ii) In the case of Md. Izhar Hussain (l-776INL), in the Income & Expenditure Ac count, the assessee claimed to have paid Rs.I2,80.0001- towards Elephant charges and Rs.14.15,000/- towards Truck carrying charges. But in the documents attache d he furnished details of payment of Rs.13.80. 0001- and Rs.I5, 15,0001-respectively. (iii) In the case of Md A. Rahim Talukdar (A-II7/NL), Shri Doley found discrepan cies to the tune of Rs.3, 91,3711- in the Bank Accounts. On inquiry the assessee could not offer any explanation other than non-account maintained cash Shri Dol ey could have easily considered the amount as income from undisclosed source and made further inquiry. As disclosed hereinabove, the actual discrepancies were m uch more than thefigure calculated by Shri Doley. In that process of shortening his work, without going into details or checking b ank accounts, after obtaining it from the assessee, Shri Doley tried in a few ca ses to reach at a hasty conclusion by asking assessment while enough time was th erefore completion of the assessment. My findings: In respect of the mistake relating to M’s Mahabir Transport Co., Sh ri Doley in the course of inquiry submitted, inter-alia, that it was a bonafide mistake which occurred due to oversight. I have examined the allegation and the submission of Shri Doley. I find that, in the case of M/s Mahabir Transport Co., gross receipt shown in the Profit & Loss Alc is Rs, 47,40,587/- . The total receipt as per the IDS certificates includin g the one filed after filing of return comes to Rs.52,25,533/-. Thus the gross r eceipt has been suppressed to the extent of Rs. 4,84,946/-. In my view, nothing could be done about it by the Assessing Officer (Shri Doley) in the processing s tage. I find that in this case assessment was made U/S 143(3). The Assessing Off icer (Shri Doley) should have examined the gross receipt with reference to the T DS certificates and made suitable addition As regards the mistake pointed out in the case of Md. lzhar Hussain. Shri Doley argued that it will not always that the Assessing Officer check the total of cas h vouchers for each and every voucher. I have examined the allegation and the su bmission of Shri Doley. I find that the irregularities mentioned in the allegati ons are correct. Shri Doley’s contention that he cannot be expected to check the vouchers with reference to the expenses claimed is not acceptable. As regards the allegation in the case of Md. A. Rahim Talukdar, Shri Doley state d that he found assessee’s explanation regarding source of the deposits reasonab le and that it being a case where no books of accounts were maintained, the expl anation of the assessee could not be rejected. I have considered the allegation and Shri Doley’s explanation. In this case, Shr i Doley, in the course of assessment proceedings found that the deposits in the bank account exceeded the gross receipt shown by Rs.3,91,371/-. But he accepted the assesse’s explanation that the excess credit represents loan/security money refunded by friends and relatives without obtaining any details/evidence. Shri D oley’s contention that assessee’s explanation regarding the source of the deposi ts could not be rejected because it was a case where no books were maintained is totally absurd. He should have obtained details of the deposits and called for evidence in support of details/evidence. Shri Doley’s contention that assessee’s explanat ion regarding the source of the assessee’s claim. Further, it was found that in this case that the total receipt as per the TDS ce rtificates comes to Rs.12,89,s46/-. The receipt net of TDS comes to Rs. 12,63,87 7/-. Shri Doley was able to obtain bank statement of the assessee from only one bank, i.e., Allahabad Bank, North Lakhimpur Branch. It was also found that in th e said account, there were total credit ofRs.16,17,1211- out of which only Rs.3, 47,628/- relates to the IDS certificates considered. This means that Rs. 12,70,0 36 (Rs.16.17,1211- Rs.3,47,628/-) were from some other source. Shri Doley failed to examine this aspect. Allegation 6. In the matter of TDS, proper inquiry was not made in the following cases= (i) Mahavir Transport Company (ii) Md. Mobin In agricultural income related cases, verification was not done instead of havin g substantial scope and point of verification. (i) M/s Laxminarayan Agarwalla & Sons (ii) Sheikh Rasul (iii) Sukhranjan Dutta My findings: In respect of the allegation in the case of Mahavir Transport Compa ny, Shri Doley submitted that since the TDS certificates submitted by the assess ee was from a reputed organisation i.e IO.C. Ltd. and the assessee had been doin g business with I.O.C. Ltd. in earlier years also did not considered it necessar y to clarify the TDS certificate I have considered the allegation and his submis sion. I find from the records that in this case the assessee has done substantia l business with l.O.C. Ltd. Shri Doley should have obtained the statement of the assessee from I.O.C. Ltd. In this case also unsecured loans and trade creditors shown by the assessee was more than Rs. 30 lakhs, The genuineness of this shoul d have been examined. I, therefore, find the allegation that no proper inquiry w as done in this case is correct. In respect of the allegation in the case of Md. Mobin, Shri Doley submitted that the genuineness of TDS certificates were confirmed. And, therefore, the allegat ion is not correct. I have considered the allegation and his submission. I find that the assess filed only the Profit & Loss A/c. No balance sheet was filed. Sh ri Doley should have obtained the balance sheet. Further the assess did substant ial business with Gammon India Shri Doley Officer should have obtained the state ment of the assess from Gammon India and examined the same. Further, it was the first year of assessee’s business. Therefore, Shri Doley should have examined th e source of opening balance in the Capital account. I, therefore, find the alle gation that no proper inquiry was done in this case is correct. In respect of the allegation in the case of M/s Laxminarayan Agarwalla & Sons, S hri Doley submitted that there was no scope to verified as the case was disposed u/s 144. I have considered the allegation and his submission. I agree with Shri Doley that since the assessment was done u/s 144, it was not possible to obtain details. In respect of the allegation in the case of Sheikh Rasul, Shri Doley submitted t hat verification as to who was doing the agricultural activity was called for an d an affidavit was furnished. I have considered the allegation and his submissio n. Shri Doley has not been able to rebut the allegation that details of landhold ing was not obtained by him. In my view the landholding is a most basic requirem ent for claiming income from agriculture and Shri Doley should have obtained the se details. In respect of the allegation in the case of Sukhranjan Dutta, Shri Doley submitt ed that in the course of assessment proceedings the assessee on being asked to f urnished details of Land Patta stated that the land was inherited and there was no Patta. He further stated that in Assam there are many such cases where cultiv ation is done in land by persons without holding land Patta. I have considered t he allegation and his submission. Even if the assessee’s claim that he did not h ave land Patta Shri Doley should have obtained at least the locational details o f the land Allegation 7. In cases of contractors, no consistency was maintained to determin e their income. When no books of accounts are maintained, income has to be taken at least @ 8% under the Law. But it is found that expenditures were claimed on estimate basis that were also allowed. Even in some of the cases, the receipt sh own in the TDS certificates were not taken in consideration. My Findings: Shri Doley submitted that in the cases of contractors generally 8% was applied to the gross receipt in no books of accounts cases and in the books of accounts cases considering some other factors with regard to contract cases a nd nature of contract works some expenditure claimed can be accepted. I have con sidered the allegation and his submission I find that in the case of Shri Anil Kr. Srivastav for Asstt.year 1996-97, no bo oks of accounts maintained. The gross receipt of supply business was shown at Rs .l,74,450/-. The assessee showed income from the said business at Rs.17,550/-. S hri Doley assessed the profit at Rs.19,000/-. Therefore, in this case there was no violation of the provision of the Act by Shri Doley. I further find that in t his case the assessee made certain gifts during the previous year relevant to th e Asst. Year 1995-96. No gifts tax proceedings were initiated. Shri Doley accept ed failure to invoke gift tax proceedings. In the case of Izahar Hussain for A.Y. 1995-96 no books were produced. Assessee estimated the profit at Rs. 8% of gross profit. For asst. Year 1996-97, books of accounts produced. In the case of Rahim Talukdar for A. Y. 1995-96, no books of accounts were maint ained. The profit from business was shown at Rs.98,200/- which comes to 8% of gr oss receipt. Therefore, the business income was found to be assessed as per the provisions of the Act. In the case of Sudhir Dutta who had shown income from contract business in the a ssessment year was completed u/s. 144. The profit estimated by Shri Doley at 8% for contract works. The profit of truck plying was taken @ Rs. 24,000/- per truc k. But latter the assessee claimed that one of the truck was not plying for six months and file petition for rectification u/s 154 there upon Shri Doley passed the order u/s. 154 taking income from the said truck for four months only. Conclusion: On the basis of the foregoing discussions, I find that the following omissions were made by Shri Doley 1. He failed to initiate penalty proceedings in cases where the assessees failed to comply with notices issued under the Act. 2. While making scrutiny assessments, Shri Doley failed to collect basic details /informations such as details of Bank accounts, list of debtors and creditors et c. A very large number of cases were disposed of in a single hearing. Though, In struction No.l937 dt.25/03/1996 makes it mandatory for obtaining particulars of assets including name and address of the debtors, bank account etc. Shri Doley m ade no attempt to collect these in most cases. 3. Even in cases scrutinised for the first time, Shri Doley failed to collect th e basic information about the assessee such as activity of the assessee, his pro perty and investments, size "