A. Raghuvir. C. J.:- This reference is made at the instance of the assessee under the Income Tax Act, 1961. Daljeet Kaur is the assessee in the case. She was married on April 13, 1975. Her spouse is par­tner in a firm called Bhupendra Cloth Stores at a place called Hojai in Nagaon District. The assessee submitted three returns on July 25, 1978 in that for the year 1976-77 she showed an income of Rs. 8.500/-, for 1977-78 Rs. 8,600/- and for the year 1978-79 she showed Rs. 10, 100/- as her income. The I. T. O., A-Ward Nagaon served notice on July 26, heard her authorised representa­tive on July 29, 1978, determined her income was Rs. 8.500/-in 1976-77, Rs. 8, 600/- in 1977-78 and Rs. 10, 100/- in 1978-79. The I. T. O. appended a note in the file that action under sec­tion 147/263 may be taken if necessary in future. These are the primary facts in the case. 2. The Commissioner of Income Tax at Shillong (C. I. T.) in­formed the assessee to reopen the assessment orders and fixed a date for hearing. The assessee desired to be heard in person, As she was enceinte therefore prayed for a long adjournment of the hearing. Her authorised representative however was heard. The C. I. T. after inquiry recorded that the inquiry made on July 29, 1978 by the I. T. O. was scrappy in that the assessee was not examined. The inquiry revealed no account books were maintained by the assessee. One unsigned paper was filed to show she kad earned Rs. 8, 500/-, Rs. 8, 600/- and Rs. 10, 100/- for the three assessment years. Her opening balance of account was Rs. 5000/- which amount it was represented she received at her marriage from her parents and relatives. Besides four receipts were filed to show she was paid Rs. 100/-and in one case Rs. 120/- from her pupils. She was represented to have imparted sewing lessons. The particulars of the amounts received on this count were not shown. 3. The C. I. T. on the above evidence held the inquiry held by the I. T. O. was done in baste. The assessee had no books of accounts. The assessee was not examined. Hojai was a small town and it was improbable students at such a small town paid her Rs. 100/- and Rs. 120/- towards tuition fees. 3. The C. I. T. on the above evidence held the inquiry held by the I. T. O. was done in baste. The assessee had no books of accounts. The assessee was not examined. Hojai was a small town and it was improbable students at such a small town paid her Rs. 100/- and Rs. 120/- towards tuition fees. Besides by qualifica­tion she passed Higher Secondary examination and with such qualification as she possessed she could not have attracted stu­dents for tuitions. There was no tangible evidence in proof of any income from sewing lessons. Her accounts showed she with­drew Rs. 1000/- from her deposits of Rs. 28, 500/- by March, 1979. These circumstances did not lend assurance that she had any income. The three assessment orders were therefore set aside as prejudicial to the revenue. The I. T. O. Was directed to hold a de novo inquiry. 4. The Tribunal on appeal by the assessee confirmed the fin­dings recorded by the C.I.T. Thereupon the following quest­ion is referred to this court at the instance of the assessee : "Whether on the facts and in the circumstances of the case,, the Tribunal was right in upholding the order of the Commissioner of Income Tax by concluding that the assessment ord­ers in question were erroneous in so far as they ware preju­dicial to the interest of the revenue ?" 5. The jurisdiction of the C I.T. under section 263 of the Income Tax Act is vigorously assailed by the assessee. A cognate question is raised as to what forms a record for purposes of Section 263 of the Act. The interests of the revenue on the facts of the case were not at all prejudicially affected is the principal plank of the assessee in this court. 6. The C.I.T. and the Tribunal both held there was some sort of fraud practised on the revenue in which the assessee either played a part along with her husband when she filed voluntarily three returns or that she connived with her husband and obtained orders from the I.T.O. These conclusions are not recorded in so many words but sufficient suggestions are thrown out in the orders to infer such a conclusion. The ba­ckground for the suggestion is that her spouse is a textile trader in Bhupendra Cloth Stores at Hojai. The ba­ckground for the suggestion is that her spouse is a textile trader in Bhupendra Cloth Stores at Hojai. The C.I.T. the­refore suggests no explicitly inferences can be drawn either as a possibility or as high probability as indicated earlier. 7. We see the record relevant to the spouse or that of the firm of Bhupendra Cloth Stores was not before the I.T.O. or before the C.I.T. Therefore the assessee assails the suggested inferences and argued the conclusions arrived at by the C.LT. or that of the Tribunal are mere conjectures. If the inferen­ces of the two authorities are left out what remains is that the assessee had no income of her own because at Hojai the assessee could not have imparted lessons or held sewing classes and earned no income in the relevant three assessment years. On these primary facts the assessee contends if no income accrued or earned by her and she filed returns showing income the revenue is not prejudicially affected as in a case where no lax is to be paid the revenue levied and can collect some income. 8. In that background the scope of the words "erroneous and prejudicial to the interest of the Revenue" contained in Section 263 is highlighted on behalf of the assessee by the learned counsel who appeared for her. The scope and ambit of the above words is covered in many decided cases. In numerous cases the words error and prejudicial were held to be two di­sjunctive factors. The learned counsel for the assessee argued the two are not disjunctive. In our view this contention adv­anced on behalf of the assessee is well founded. 9. We have sorted out from among the large number of cases where this contention was considered by the High Courts. To start with in Civil Rule 182 of 1982 and batch rendered on July 21, 1989 (Rajendra Singh vs. The Superintendent of Tax­es) this court considered similar issue. The issue in that case arose under the Tripura Sales Tax Act, 1979. Section 21 of the Act enabled a Commissioner to revise the orders if they were erroneous and prejudicial to the interest of the revenue. The width and ambit of the power of these words was consi­dered by Justice Dr. The issue in that case arose under the Tripura Sales Tax Act, 1979. Section 21 of the Act enabled a Commissioner to revise the orders if they were erroneous and prejudicial to the interest of the revenue. The width and ambit of the power of these words was consi­dered by Justice Dr. Saraf speaking for the Division Bench of himself and Srivastava, J. We respectfully agree with what all has been observed in the following passage by the learned Judges: "The power of suo motu revision under sub-section (1) is in the nature of supervisory jurisdiction and the same can be exercised only if the circumstances specified therein exist. Two circumstances must exist to enable the Commissioner to exe­rcise power of suo motu revision under this sub-section-(i) the order is erroneous, (ii) by virtue of the order being erroneo­us prejudice has been caused to the interest of the revenue. It is not sufficient that the order is erroneous. It must be erroneous and also prejudicial to the interest of the revenue, (sic If an order is erroneous but not prejudicial to the revenue), the Commissioner cannot exercise power under this sub-section. Likewise it is not sufficient to exercise power under Section 20 (1) that the order in question is prejudicial to the inter­est of the revenue...... From the aforesaid definitions it is clear that an order cannot be termed as erroneous unless it is not in accordance with law. If an officer acting in accorda­nce with law makes certain assessment and determines the tur­nover of a dealer the same cannot be branded as erroneous by the Commissioner simply because according to him the order should have been written more elaborately." 10. A decision of the Calcutta High Court in 109 ITR 229. Russel properties Pvt. Ltd. vs. Addl. CIT, West Bengal delineated in similar terms the amplitude of these words contained in Secti­on 263 of I. T. Act, 1961 at page 243 : The Calcutta High Cou­rt held : "It is not sufficient that the order was merely erro-oneous. It must be erroneous in so far as it is prejudicial to the interests of the revenue. Again it is not sufficient for the order in question to be prejudicial. It must be erroneous in so far as it is prejudicial to the interests of the revenue. Again it is not sufficient for the order in question to be prejudicial. An order must be erroneous so as to be prejudicial to the interests of the reve­nue would be erroneous and that anything which is not lawful would be prejudicial to the interest of the revenue. For the ingredients or the requirements of the section reliance may be placed on...." 11. The Madhya Pradesh High Court in 138 ITR S18, Maharaja (H.H.) Raja Power Dewas vs. CIT in like terms held at page 524-"Under S. 263(1) two prerequisites must be present before the Commissioner can exercise the revisional jurisdiction conf­erred on him. First is that the order passed by the ITO must be erroneous. Second is that the error mast be such that it is prejudicial to the interest of the Revenue. If the order is erroneous but it is not prejudicial to the interest of the Revenue, the Commissioner cannot exercise the revisional jur­isdiction under S.263 (1) of the Act." This passage in the Madhya Pradesh case was extracted and followed in 152 1TR 683 (Krishnamur thy vs.C.I.T.) by the Karnataka High Court. Instances like this can be multiplied. 12. The C. I. T. concluded that the assessee had no income of her own and if this circumstance alone is relevant to repeat then one fails to see how the revenue is prejudiced by the I. T. O.'s order. This is repeated and mentioned to show unl­ess other circumstances are juxtaposed with the trade of her husband the conclusion that she had no income cannot attract S. 263 power of the C. I. T. Therefore it is necessary to clucth at the jurisdiction there must be evidence to infer the interest of the revenue suffered prejudice due to fraud attempted either by the assessee or by her spouse. There is no material to implicate the assessee in any fraud by herself. Even from the test of probability or high probabilty juxtaposed to the circumst­ance that Hojai was a small town. She was not so well qualified. Her story of income by tuitions and lessons in sewing is too good to be true. The next important aspect from the circumstances is that of the test in probability or of high probability leading to a fraun. She was not so well qualified. Her story of income by tuitions and lessons in sewing is too good to be true. The next important aspect from the circumstances is that of the test in probability or of high probability leading to a fraun. The record of ITO reveals the spouse of the assessee is a trader in a small town dealing in textile and no other. The assess­ment orders of the firm or that of her husband were not part of the record not scrutinised in which case what is there to infer fraud as a probability or high probability to have been practised or that she connived with her husband to defraud the revenue. 13. In a Calcutta case 118 ITR 447 (Ganga Properties vs. Income tax Officer) the aspect of record was put in the correct perspective : Therefore, the materials which were not in existence at the time the assessment was made but after came into existence cannot form part of the record of the proceeding of the I. T. O. at the time he passed the order and accordingly, it cannot be taken into consideration by the commissioner for the purposes of invoking his jurisdiction-under this Section, for he is not an appellate authority under this Section and exer­cises only a revisional jurisdiction and hence he can only take into consideration the record as it stood before the ITO and the materials in such record for the purposes of ascertaining whet­her the order in question was erroneous and prejudicial to the interest of the revenue. We respectfully adopt the reasoning and conclusion reached in that case. 14. The Supreme Court in the case 67 ITR 84, Rampyari Devi Sareogi vs. C. I. T. reiterated what they held in the case of 88 ITR 323, Smt. Tara Devi Agarwzl vs. C. I. T. West Bengal. In the earlier case in point of time at page 328 it is held : "Even when an income has not been earned and is not assess­able, merely because the assessee wants it to be assessed in his or her hands in order to assist someone else who would have been assessed to a larger amount, an assessment so made can certainly be erroneous and prejudicial to the interest of the revenue. If so-and we think it is so-the Commissioner under Section 33B has ample jurisdiction to cancel the assessment and may initiate proceedings for assessment under the provisions of the Act against some other assessee who according to the income-tax authorities is liable for the income thereof." The Supreme Court reached to the above conclusion on facts of the case and what is of importance is the Supreme Court did not consider the issues as to what forms record for the purpose of Sec. 263 of the Income Tax Act, 1961 in that case. The case of 1922 Appeal Cases 128, the King vs. Nat Bell Liquors Ltd. illustrates the insurmountable difficulty faced by Courts in identifying a record or the record when it is concealed in the insecurtable face of a Sphnix (P.59). Lord Summer discovered the record in that case as William Hazlitt the English essayist said in another context "almost in tears". 15. We hold on the facts of the case the instant case is of non est record or of non est evidence to probabilise any fraud. The learned counsel for the Revenue argued the assessee to benefit her spouse submitted a voluntary return and the conc­lusion recorded by the C. I. T. and the Tribunal are well fo­unded on facts. The counsel further emphasised the assessee had DO income and at a small place like Hojai she could not have earned any amounts and relied on decisions in 164 ITR 639, CIT vs. Pushpa Devi, 164 ITR 658 CIT vs. Smt. Rambha Devi, 173 ITR 445 CIT vs Smt. Pushpa Devi, 173 ITR 458 CIT vs. Smt. Manju Didhoria, 174 ITR 601 CIT vs. Geeta Devi Agorwal, 175 ITR 566 CIT vs. Smt. Sharda Devi Lath, and 175 ITR 591 CIT vs. Smt. Krishna Devi. 16. In each of the above case it was inferred as a fact inter­ests of the revenue suffered the prejudice. There is no general principle laid in any of the cases for this court to follow as a precedent. In the instant case we hold there was nothing in evidence and also no record to hold that the assessee defrau­ded the revenue or the revenue suffered any prejudice. 17. For the aforesaid reasons, we answer the question referred in the negative in favour of the assessee and against the Revenue. No costs.