DEKA, J.: This is a, reference invited under S. 66 (2) of the Indian Income-tax Act, and a statement of the case has been made in accordance with the order of this Court. The points under reference are as follows : 1. Whether the statements of the two deposi­tors, Suraj Mian and Mohomad Talim, which were not recorded on oath in clear violation of S. 37 of the Indian Income-tax Act, would be admissible in evidence and could be acted upon in holding the sum of Rs. 85,050/- kept as deposits, to be the in­come of the assessee? 2. Whether the affidavits filed by the deposi­tors before the learned Appellate Assistant Com­missioner, admitting the said deposits to be their own moneys, could not be relied on and acted upon in law, in the absence of any rebutting evidence, with­out an examination of the persons filing the affidavits? 3. Whether the entries in the Books of Ac­count of the assessee kept in regular course of busi­ness showing the deposits in the names of remain­ing depositors, whose statements were not recorded under S. 37 of the Income-tax Act, but who filed Affidavits admitting the amounts deposited to be their own money, could be held in law to be not genuine in the absence of any rebutting evidence whatsoever in record, and simply on the basis of the alleged statements made by the two depositors only? 4. Whether, in the facts, circumstances and evidence adduced in the case, the addition to the total income, as income from undisclosed source of a sum of Rs. 85,0507-, being aggregate of the credits in the names of 9 (nine) different third parties, was legally justified? (2) The facts shortly put are that the assessee was a Hindu undivided family and Sri Balabux More was the karta at the material period. The family carried on business in jute, mustard goods, cloth etc., at Kaibargaon in the district of Nowgong, with bran­ches at several places, including Juria and Calcutta. In course of examination of account books of the Juria branch, the Income-tax Officer, Nowgong, dis­covered cash deposits in the name of several persons totalling a sum of Rs. 85,050/-, as detailed below. 1. Abdul Mia ...... Rs. 9.500/- 2. Jainal ...... Rs. 11.000/- 3. Jonabali „. ... Rs. 8.500/- 4. Bahadur Mia ...... Rs. 9,500/- 5. Abdul Subhan...... Rs.11.500/- 6. Sk. Mahabatuilah ...... Rs. 9.000/- 7. Maharuddin ...... 85,050/-, as detailed below. 1. Abdul Mia ...... Rs. 9.500/- 2. Jainal ...... Rs. 11.000/- 3. Jonabali „. ... Rs. 8.500/- 4. Bahadur Mia ...... Rs. 9,500/- 5. Abdul Subhan...... Rs.11.500/- 6. Sk. Mahabatuilah ...... Rs. 9.000/- 7. Maharuddin ...... Rs. 11.600/- 8. Sura.1 Mia ...... Rs. 10.500/. 9. Mohd. Talim ...... Rs. 3.950/. Rs. 85.050/-. The assessee explained that he had taken temporary loans from the above-named persons with a view to meet his liabilities to certain Calcutta parties. The alleged depositors were found to be all cultivators by profession, and the Income-lax Officer issued sum­monses under S. 37 of the Indian Income-tax Act to the first eight persons for examination, but only one of them, namely, Suraj Mia, appeared before him, and the last depositor, Md. Talim, was also pro­duced before him, and they were examined by the Income-tax Officer in the presence of the assessee or rather his representative. They did not support the entries as such or the deposits shown to their credit. Their statements were recorded by the Income-tax Officer, but they were administered no oath prior to the recording of their statements. On an examination of the accounts submitted by the assessee and on a scrutiny of the statements made by these two persons, the Income-fax Officer refused to hold that the transactions as shown in the books of account of the assessee were genuine. He accordingly treated the sum of Rs. :§5,050/- as hidden profit of the assessee's firm and accordingly added it to the income of the assessee for the accounting year 2006 S. Y., the relevant as­sessment year being 1950-51. (3) An appeal was preferred against this assess­ment by the assessee before the Appellate Assistant Commissioner of Income-tax. During the pendency of this appeal, the two persons - Suraj Mia and Mohd. Talim - filed two affidavits retracting their statements already made before the Income-tax Offi­cer, and asserting that it was due to some sort of threat held out by the Income-tax Officer that they had made incorrect statements before him. On the other hand, in the affidavits filed before the Appel­late Assistant Commissioner, they stated that the monies shown against their names as deposits in the books of account were correct. On the other hand, in the affidavits filed before the Appel­late Assistant Commissioner, they stated that the monies shown against their names as deposits in the books of account were correct. The other persons whose names appeared as depositors in the books of the assessee in regard to the other amounts, as mentioned above, also filed affidavits stating that they had deposited the amounts with the assessee as shown in their books. The learn­ed Appellate Assistant Commissioner took into consideration these affidavits filed as well as the books of account of the assessee. In his opinion, these affidavits did not show the real state of things - the alleged depositors having had at no time any sizeable amount to their credit. He finds categorically that some of the alleged depositors had financial transactions with the asses­see during the accounting year concerned other than the cash deposits in question, and it is seen from those transactions that petty amounts were being deposited by them from time to lime followed by withdrawals at short intervals, leaving practically no balance to be carried forward for the next year. In consideration of the circumstances, he held that the entries in the assessee's books were not correct and the affidavits filed could not be believed. He accord­ingly affirmed the finding of the Income-tax Officer with regard to this Rs. 85,050/- as undisclosed in­come of the assessee and upheld the assessment. An appeal being taken against this assessment by the assessee to the Appellate Tribunal, this point was discussed and the relevant finding is in these words : "4. The addition of Rs. 85,050/- being the ag­gregate credits in 9 names, must remain added. We agree with the Department for the reasons given by the Income-tax Officer and Appellate Assistant Commissioner, that the assessee has failed to provej the source of these credits." (4) Mr. P. Chaudhuri appearing on behalf of the Department has contended that the points under reference do not strictly arise from the order of the Appellate Tribunal, that being a condition precedent under S. 66(1) of die Income-tax Act. For our pur­pose, we need not answer that point categorically, the reference being already made under the direc­tions of this Court. I, therefore, propose to go straight Into the points as raised and answer them. For our pur­pose, we need not answer that point categorically, the reference being already made under the direc­tions of this Court. I, therefore, propose to go straight Into the points as raised and answer them. (5) Much stress hag been laid on the first point as formulated, namely, as to whether it was obliga­tory on the Income-tax Officer to administer oath to the two persons appearing before him, namely, Suraj Mia and Mohd. Talim, when they were examined in pursuance of the provisions of S. 37 of the Income-tax Act. The question is : whether the statements of these two persons which were not recorded on oath, were admissible in evidence and could be acted upon in holding the sum of Rs. 85,050/- to be the income of the assessee. On a reference to S. 37 of the Act, it would appear that it gives the Income-tax Officer, Appellate Assistant Commissioner, Commis­sioner and Appellate Tribunal the powers as vested in a Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following mat­ters, namely: (a) discovery and inspection; (b) enforcing the attendance of any person, in­cluding any officer of a banldng company, and exa­mining him on oath; (c) compelling the production of books of ac­count and other documents; and (d) issuing commissions. Section 37(1) (b) provides that the officers named in the section have the power of 'enforcing tie atten­dance of any person, including any officer of a bank­ing company, and examining him' on oath'. Here, though eight persons were summoned to appear be­fore the Income-tax Officer for the purpose of exa­mination, as provided under this section, two of them appeared and their statements were recorded but not on oath. The first part of the question is : whether the Income-tax Officer concerned could examine the two persons in question at all without administering oath or affirmation; and the second branch is : if those two persons were so examined, whether their statements would be admissible for the purpose of the case. The relevant part of the section, as I have already quoted, does not lay down any obliga­tion to administer oath, but it empowers the officer so to do. Therefore, he could examine the persons even without administering oaths. The relevant part of the section, as I have already quoted, does not lay down any obliga­tion to administer oath, but it empowers the officer so to do. Therefore, he could examine the persons even without administering oaths. The second branch of the question is answered by S. 13 of the Indian Oaths Act (Act X of 1873) itself, which runs as follows: "No omission to take any oath or make any affir­mation, no substitution of any one for any other of them, and no irregularity whatever in the form in which any one of them is administered, shall invali­date any proceeding or render inadmissible any evi­dence whatever, in or in respect of which such omis­sion, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth." In this case, therefore, the statements of the persons were admissible, and we must accordingly answer the first point raised under reference in favour of the Department. (6) The second point which I have already quoted raises the question as to whether the affida­vits filed at the appellate stage before the Appellate Assistant Commissioner were conclusive on the point under investigation, and whether the Appellate Assistant Commissioner was obliged to act upon the same in the absence of any rebutting evidence. The portion of the judgment of the Assistant Commis­sioner on this particular point has been placed be­fore us, and we find that he has given his own reasons as to why he preferred to reject the affidavits filed by the alleged depositors. His finding is purely a question of fact and we find no illegality in arriving at the same, nor do we consider it to be perverse. It is not necessary in all cases that the Department should come with some rebutting evidence of its own, but the parties con­cerned are entitled to make out a case on the mate­rials as they are before the officer concerned. There­fore, it would depend always on the circumstances of each case as to whether an affidavit commands credit, irrespective of the fact as to whether the de­ponent turns up for examination or not. (7) The third point under the reference is inter­connected with the first two points already answered. There­fore, it would depend always on the circumstances of each case as to whether an affidavit commands credit, irrespective of the fact as to whether the de­ponent turns up for examination or not. (7) The third point under the reference is inter­connected with the first two points already answered. The finding is quite clear that the assessee's accounts were not trustworthy in the estimation of the Taxing Officers - nor did the Appellate Assistant Commis­sioner believe that they were made in the usual course of business. The relevant extract runs as follows: "On a scrutiny of the books, it is evident that the entries in respect of the alleged cash deposits were not made in usual course of entering other business transactions. Also at no time in the past or future any of the alleged depositors have been shown to have made such large deposits with the assessee for safe custody or any other purpose. In fact, these petty cultivators could hardly have had so much surplus money with them. On these facts and circumstances, I am of the view that the I.T.O.'s action in treating the alleged deposits as the assessee's income from some undisclosed source is quite justified." No limit can be put to the discretion of the officer concerned as to whom or what document he will be­lieve or what he will reject. He can take into con­sideration all relevant and admissible evidence ra­ther in a wider sense than strictly legal and, there­fore, there was nothing wrong in rejecting the state­ments contained in the affidavits of persons who did not offer themselves for interrogation before the In­come-tax Officer concerned. (8) The fourth point really summarises the ear­lier contentions raised in the above three points. Those points being decided against the assessee, this point also must be answered in favour of the Depart­ment. In our opinion, therefore, the reference is dis­posed of as indicated above, and all the points are answered in favour of the Income-tax Department. The assessee is to pay the costs of this reference, which we assess at Rs. IOO/-. SINHA C. J. t (9) I agree. In our opinion, therefore, the reference is dis­posed of as indicated above, and all the points are answered in favour of the Income-tax Department. The assessee is to pay the costs of this reference, which we assess at Rs. IOO/-. SINHA C. J. t (9) I agree. In my opinion, the provi­sions of Section 37 of the Indian Income-tax Act are enabling inasmuch as they vest the Income-tax Officer and the other authorities of the Income-tax Department mentioned therein with powers to en­force the attendance of any person and examine him on oath or affirmation, as also to exercise the other powers mentioned in the section. Under S. 37 of the Act, therefore, the Income-tax Officer or the other officers of the Department mentioned therein, have the power to enforce the attendance of any person who may be able to give information to the officer concerned in regard to the assessment. It is now firmly established that the materials on which the assessment is based, may be such materials as may not be admissible under the rules of the Evi­dence Act. The Income-tax Officer must base his decision upon materials and those materials should be made available to the assessee, so that he may have a chance of satisfying the officer by giving any rebut­ting evidence to those materials. (See "Dhakeswari Cotton Mills Ltd. v. Commissioner of Income-tax, West Bengal" reported in (S) AIR 1955 SC 65 ). In that view of the matter, the material furnished by the statement of a person whose attendance is enforced by the Income-tax Officer or any other officer of the Department, is good material, although that state­ment is not made by the person on any oath or affir­mation. The provisions of this section do not compel the authorities mentioned therein to take statements of persons only upon oath. JC/R.G.D. Questions answered accordingly.