Full Judgment Text
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PETITIONER:
THE COMMISSIONER OF INCOME-TAX, BANGALORE
Vs.
RESPONDENT:
SHREE MAN JUNATHESWARE, PACKING PRODUCTS & CAMPHOR WORKS
DATE OF JUDGMENT: 02/12/1997
BENCH:
G.T. NANAVATI, M. JAGANNADHA RAO.
ACT:
HEADNOTE:
JUDGMENT:
THE 2ND DAY OF DECEMBER, 1997
Present :
Hon’ble Mr. Justice G.T. Nanavati
Hon’ble Mr. Justice M. Jagannadha Rao
K.N. Shukla, Sr. Adv., B.k. Prasad, and S. Rajappa, Advs.
with him for the appellant
Ms. Indu Malhotra, Adv. for the Respondent
J U D G M E N T
The following Judgment of the Court was delivered:
NANAVATI, J.
Leave granted.
Heard learned counsel on both the sides.
This appeal arises out of the judgment and order passed
by the High Court of Karnataka on 6th Jun, 1995 in I.T.R.C.
No. 26/93. The question that was referred to the High Court
was:
" Whether, on the facts and in the
circumstances of the case, the
Appellate Tribunal i right in law
in holding that the word ’record’
used in Sec. 263 (1) of the Act
would not mean the record as it
stands at the time of examination
by the Commissioner, but it means
the record as it stands at the time
the order in question was passed by
the ITO?"
The respondent-firm, during the previous year relevant
to the assessment year 1977-78, had constructed a cinema
theatre and in the return filed by it had shown the cost of
construction at Rs. 20,28, 498/- (Rs. 23,78, 242 less Rs. 3,
49, 644 being electric portion). The income-Tax Officer on
2nd February, 1980 wrote to the Departmental Valuation
Officer to ascertain and report correct cost of construction
of the theatre. The Valuation Officer expressed his
inability to give his valuation report by 31st March, 1980
by which date the assessment was to be completed. The
Income-Tax Officer, therefore, without waiting for his
report, passed an order assessment accepting the valuation
mentioned by the assessee in its return. The Valuation
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Officer submitted his report on 16th December, 1980. He
determined the cost of construction at Rs. 34, 58, 600/- as
against Rs. 20, 28, 498/- stated by the assessee. Therefore,
the Commissioner of Income-Tax issued a notice under Section
263(1) of the Income-Tax Act to the assessee on the ground
that investment not accounted for by the assessee-firm
should have been brought to tax and the income-Tax officer
having not done so, his order was erroneous and prejudicial
to the interest of the Revenue. Before the Commissioner, it
was contended by the assessee that as the Valuation Report
was not available to the Income-Tax officer at the time of
passing the assessment order and did not form part of the
record of the proceeding, it could not be a valid basis for
initiating an action under Section 263 of the Act and,
therefore, the proceeding deserved to be dropped. The
decision of the Calcutta High Court in Ganga Properties V/s
[(1979) 118 ITR 447] was relied upon in support of that
contention. The Commissioner rejected it on the ground that
the term ’record’ would include all records available at the
time of examination by him, set aside the assessment made by
the Income-Tax Officer and directed him to pass a fresh
assessment order in light of the observations made by him.
The assessee preferred an appeal to the Income Tax
Appellate Tribunal against that order. The Tribunal upheld
the contention of the assessee relying upon the judgment of
the Calcutta High Court in Gaga Properties case (supra),
allowed the appeal and set aside the order passed by the
Commissioner.
At the instance of the Revenue, the question stated
above was referred to the High Court of karnataka for its
opinion. The High Court after referring to the decisions of
the Calcutta High Court in Ganga Properties case and C.I.T.
V/s. S.M. Oil Extraction Pvt. Ltd. [(1991) 190 ITR 404],
held that though the record contemplated by section 263 (1)
does not mean only the order of assessment but it comprises
all proceedings on which the assessment is based, yet if
there was some record which was not available on the date of
completion of assessment that record would not form part of
the order of the assessment authorities. It, therefore,
answered the question in affirmative, i.e., in favour of the
assessee and against the Revenue. The Revenue has,
therefore, filed this appeal.
Mr. Shukla, learned counsel for the Revenue, submitted
that in view of the amendments made in Section 263 (1) by
the Finance Act 1988 and the Finance Act of 1989, the term
’record’ would mean all records relating to that proceeding
available at the time of examination by the Commissioner. He
further submitted that even though the Valuation Report
submitted by the Departmental Valuation Officer was not
available to the Income-Tax officer when he had passed the
assessment order, it became a part of the record and,
therefore, it was open to the Commissioner to consider the
same while exercising his revisional power under that
section. strongly opposing these submissions, Ms. Indu
Malhotra, learned counsel appearing for the assessee,
submitted that as the Commissioner had passed the order on
3rd March, 1982, the amendments made in Section 263 (1), in
1988 and 1989, though with retrospective effect cannot have
the effect of validating the order of the Commissioner which
was illegal when passed. She submitted that when the order
was passed by the Commissioner the correct position of law
was that only that record which was available to the income-
Tax Officer could be considered by the Commissioner for the
purposes of exercising his power under Section 263 (1). She
submitted that the legislature by adding the explanation and
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widening the definition of the term ’record’ has now enabled
the Commissioner to take into consideration all records
relating to the proceeding. In her submission, the 1989
amendment had only limited retrospective effect. If an order
passed by the Commissioner under Section 263, after 1st
June, 1988, was challenged on the ground that he had taken
into consideration the material, which was not available to
the Income-tax Officer, when he had passed the assessment
order, then its validity had to be determined on the basis
that not only all the record of that proceeding but the
record relating to it was also available to the
Commissioner. But an order passed before 1st June, 1988, if
it was illegal for the reason that it had taken into
consideration other material also, then the amendment of
1989 did not have the effect of making it legal.
Earlier Section 263 (1) did not contain any
explanation. It enables the Commissioner to call for and
examine the record of any proceeding under the Act and pass
such order thereon as the circumstances of the case justify,
including an order enhancing or modifying the assessment or
cancelling the assessment and directing a fresh assessment,
if he considers that any order passed by the assessing
officer is erroneous insofar as it is prejudicial to the
interests of the Revenue. By the Taxation Laws (Amendment)
Act, 1984, an explanation was added to Section 263 (1) for
removal of certain doubts but it is not necessary to refer
to that explanation as it related to the meaning of the
expression "order passed by the assessing officer" and,
therefore, not relevant for the purpose of this case. By the
Finance Act. 1988, the said explanation was substituted
w.e.f. 1st June, 1988. The reason why the Legislature had
to make that amendment is stated in the Memorandum
explaining the provisions in the Finance Bill of 1988. We
will refer to only that part which is relevant for us. It
was observed by the Legislature that the provision as it
stood then, had given rise to judicial controversy in
respect of the following:
"48. x x x x x
x x x x
(a) On the interpretation of the
term ’record’ . It has been held in
some cases that the word ’record’
in section 263 (1) could not mean
the record as it stood at the time
of examination by the Commissioner
but it meant the record as it stood
at the time of examination by the
Commissioner but it meant the
record as it stood at the time when
the order was passed by the
Assessing Officer. Such an
interpretation is against the
legislative intent and defeats the
very objective sought to be
achieved by such provisions, since
the purpose is to revise the order
on the basis of the record as is
available to the Commissioner at
the time of examination.
x x x x x
x x x x
To eliminate litigation and to
clarify the legislative intent in
respect of the provisions in the
three Direct tax Acts, it is
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proposed to clarify the legal
position in this regard the
Explanation to the relevant
Sections. The proposed amendments
are intended to make it clear that
’record’ would include all records
relating to any proceedings under
the concerned direct tax laws
available at the time of
examination by the commissioner."
The relevant part of the explanation after its
substitution read as follows:
"Explanation.- For the removal of
doubts, it is hereby declared that,
for the purposes of this sub-
section,-
(a) ................
(b) "record" includes all records
relating to any proceeding under
this Act available at the time of
examination by the Commissioner;
(b) ........................... "
Thus, by this amendment, definition of the term
"record" for the purpose of Section 263, was provided by the
legislature. But a doubt regarding the meaning of the term
’record’ still persisted and, therefore, a further amendment
was made by the Legislature while enacting Finance Act of
1989. The Memorandum explaining the provisions in the
Finance Bill, 1989 makes that clear. Paragraph 28 of the
said Memorandum reads as under:
"28. Under the existing provisions
of Section 263 of the Income-tax
Act and corresponding provisions of
the Wealth-tax Act and the Gift-tax
Act, the Commissioner of Income-tax
is empowered to call for and
examine the record of any
proceeding and if he considers that
the order passed by the Assessing
Officer is erroneous in so far as
it is prejudicial to the interests
of Revenue,, he may pass such order
thereon as the circumstances of the
case justify, including an order
enhancing or modifying the
assessment, or cancelling the same
or directing a fresh assessment. By
the Finance Act, 1988, an
Explanation was substituted with
effect from 1st June, 1988, to the
relevant sections of the Income-tax
Act, Wealth-tax Act and Gift-tax
Act to clarify that the term
"record" would include all records
relating to any proceeding
available at the time of
examination by the Commissioner.
Further, it was also clarified that
the Commissioner is competent to
revise an order of assessment
passed by the Assessing Officer on
all matters except those which have
been considered and decided in an
appeal. The above Explanation was
incorporated in the Finance Act,
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1988, to clarify this legal
position to have have always been
in existence. Some Appellate
Authorities have, however, decided
that the Explanation will apply
only prospectively, i.e., only to
those orders which are passed by
the Commissioner after 1.6.1988.
Such an interpretation is against
the legislative intent and it is,
therefore, proposed to amend
section 263 of the income tax Act,
so as to clarify that the
provisions of the explanation shall
be deemed to have always been in
existence.
Amendments on the above lines have
been proposed in section 25 of the
Wealth-tax Act and section 24 of
the Gift-tax Act also."
After that amendment, the relevant part of the
Explanation reads as under :
"Explanation.- For the removal of
doubts, it is hereby declared that,
for the purposes of this sub-
section,-
(a)...................
(b) "record" shall include and
shall be deemed always to have
included all records relating to
any proceeding under this Act
available at the time of
examination y the Commissioner".
After referring to the history of this provision, we
will now refer to the decisions, which were relied upon by
the learned counsel in support of the rival contentions with
respect to the correct interpretation of the word "record".
The Calcutta High Court in Ganga Properties vs. Income-tax
Officer [(1979) 118 ITR 447], after observing that provision
of section 263(1) of the Act has to be understood on its
own language and in the context of the revisional
jurisdiction of the Commissioner conferred by it and also
the scheme of the Act, held as under:-
"Whereas s. 263(1) of the Act uses
the words "is erroneous" and not
the words "has become subsequently
erroneous". Under this section, the
Commissioner may call for and
examine "the record" of the
"proceeding" in order to consider
in his revisional jurisdiction as
to whether the order in question by
the ITO "is erroneous" . Therefore,
he is to call for the "record" of
the "proceeding" which was before
the ITO and examine it in order to
consider whether on the basis of
the material which were before the
ITO and formed part of that record
the order passed by the ITO is
"erroneous" and prejudicial to the
interests of the revenue.
Therefore, the materials which were
not in existence at the time the
assessment was made but afterwards
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came into existence cannot form
part of the record of the
proceeding of the ITO at the time
he passes 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 exercise only
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 interests of the
revenue.
In other words, any material which
comes into existence later on
cannot form part of the record of
the ITO for the puposes of invoking
the Commissioner’s power under s.
263(1) of the Act. And it is only
after the proceeding is lawfully
initiated by the Commissioner on
the basis of the record of the ITO
that the Commissioner can take into
account any material which may come
into existence later on in view of
the expression "after making or
causing to be made such enquiry as
he deems necessary" used in the
second limb of this section."
The Calcutta High Court interpreted the word "record"
under Section 263 (1) before it was amended by the Finance
Acts of 1988 and 1989. Following that decision Kerala High
Court in Commissioner of Income-Tax vs. M.A. Unneerikutty
[(1992) 194 ITR 546], also took the same view. in that case
attention of the Kerala High Court was drawn to the
amendments made by Finance Acts of 1988 and 1989. The High
Court, however, did not consider the effect of the said
amendments as it was of the view that there was no occasion
for the Tribunal to consider the scope of the amended
Section because it came into force only in 1988, much later
than the order disposing, of the revision and , therefore no
such question arose out of the order of the Tribunal. It was
submitted by the learned counsel for the respondent that
Section 263(1) as thus interpreted by the Calcutta and
Kerala High Courts before it was amended in 1988 and 1989
and, therefore, that was the correct legal position till 1st
June, 1988. The learned counsel also drew our attention to
the decision of Allahabad High Court in Commissioner of
Wealth Tax vs. Raj Narain Pratap Narain (HUF) [(1989) 177
ITR 34]. In that case, in the wealth-tax proceedings for the
assessment years 1978-79 and 1979-80 the Assessing Officer
had determined the fair market value of an immovable
property at Rs.7,35,086/- as on the two valuation dates
relevant for the years in dispute. After the completion of
those assessments, the Commissioner of Wealth-tax, on coming
to know that the property was sold by the assessee on August
18, 1983 for a consideration of Rs. 36 lakhs, initiated
proceeding under Section 25(2) of the Wealth-Tax Act and
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subsequently passed an order holding the impugned assessment
orders erroneous and prejudicial to the interests of the
revenue. On appeal by the assessee, the Income Tax Appellate
Tribunal held that "the expression "record" in section 25(2)
of the Act cannot mean the record as it stands at the time
when the action under that section is taken but it means the
record s it stands when the assessment order was passed by
the assessing officer". In support of this view the Tribunal
had relied upon the decision of the Calcutta High Court in
Ganga Property’s Case (supra). Against the order of the
Tribunal the commissioner of Wealth Tax had preferred two
applications under section 27(3) of the wealth-Tax Act but
they were rejected by the High Court. The view taken by the
Allahabad High Court was that the question raised by the
Department was academic because the Tribunal had not passed
its order entirely on the meaning of the expression "record"
and the other reasoning on which the decision of the
Tribunal was based was a factual one and was equally fatal
to the cause of revenue. This decision is, therefore, of not
any help at all.
She further submitted that in a matter arising under
the Wealth-tax Act Gujarat High Court had also taken the
same view and the Department’s special leave petitions Nos.
8511-13 of 1984 (Commissioner of Wealth-tax vs. Rajshree S.
Parekh) [(1991) ITR Statutes p. 76] though were heard after
the said two amendments, this Court dismissed them summarily
and thus the view taken by the Gujarat High Court was
upheld. In that case the Wealth-tax Officer had assessed the
assessee’s property as per the approved valuer’s report. The
commissioner in suo motu revision directed valuation in
accordance with the departmental valuer’s report. The
Tribunal allowed the assessee’s appeal against the order
passed by the Commissioner and also rejected the
Department’s reference application. The High Court also
rejected the reference application made by the Department
had filed the said special leave petitions in this Court. It
is true that the said special leave petitions were
dismissed summarily but that would not mean that this Court
approved the view that was taken by the High Court.
In a later decision in Commissioner of Income-Tax vs.
S.M. Oil Extraction Pvt. Ltd. [(1991) 190 404], Calcutta
High Court itself interpreted the word "record" differently.
In that case the assessment was completed on February 1,
1983. The Income Tax Officer before he completed the
assessment had referred the matter of plant and machinery
and electrical installation to the Valuation Officer (P&M).
His report was not received by the Income Tax Officer when
the assessment was completed. It was received by him after
the assessment proceeding was completed. The Commissioner of
Income-Tax took into consideration the said Valuation Report
and found the assessment order erroneous. In that context
the question which had arisen for consideration was whether
the Commissioner. in exercise of jurisdiction under Section
263 (1) o the Act could have relied upon the valuation
report which had come into the possession of the Income-tax
Officer subsequent to the completion of the assessment. The
Calcutta High Court held that "the record contemplated in
section 263(1) does not mean only the order of assessment is
based. The Commissioner is entitled, for the purpose of
exercising his revisional jurisdiction, to look into the
whole evidence. The expression "record" as used in section
263 of the Act is comprehensive enough to include the whole
record of evidence on which the original assessment order
was passed. The valuation proceeding is apart of the
assessment proceeding. But once the valuation report was
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received by the Income Tax officer, although subsequent to
the completion of the assessment, it forms part of the
assessment year in question." It further held that "where
any proceeding is initiated in the course of the assessment
proceeding having a relevant and material bearing on the
assessment to be made and the result of such proceeding was
not available with the Income-tax officer before the
completion of the assessment, but the result came
subsequently, the revising authority is entitled to look
into such material as it forms part of the assessment
records of the particular assessment year". Calcutta High
Court took this view without referring to the definition of
the word "record" contained in the explanation to Section
263(1) of the Act.
It, therefore, cannot be said, as contended by the
learned counsel for the respondent, that the correct and
settled legal position, with respect to the meaning of the
word "record" till 1st June, 1988, was that it meant the
record which was available to the income Tax Officer at the
time of passing of the assessment order. Further, we do not
think that such a narrow interpretation of the word "record’
was justified, in view of the object of the provision and
the nature and scope of the power conferred upon the
Commissioner. The revisional power conferred on the
commissioner under Section 263 is of wide amplitude. It
enables the Commissioner to call for and examine the record
of any proceeding under the Act. It empowers the
commissioner to make or cause to be made such enquiry as he
deems necessary in order to find out if any order passed by
the assessing officer is erroneous insofar as it is
prejudicial to the interests of the revenue. After examining
the record and after making or causing to be made an enquiry
if he considers the order to be erroneous then he can pass
the order thereon as the circumstances of the case justify.
Obviously, as a result of the enquiry he may come in
possession of new material and he would be entitled to take
that new material into account. If the material, which was
not available to the Income-Tax Officer when he made the
assessment could thus be taken into consideration by the
Commissioner after holding an enquiry, there is no reason
why the material which had already come on record though
subsequently to the making of the assessment cannot be taken
into consideration by him. Moreover, in view of the clear
words used in clause (b) of the explanation to Section
263(1), it has to he held that while calling for and
examining the record of any proceeding under Section 263(1)
it is and it was open to the Commissioner not only consider
the record of that proceeding but also the record relating
to that proceeding available to him at the time of
examination.
The view that we are taking receives support from the
two decisions of this Court, though the point which is
raised before us was not specifically raised in those tow
cases. In Tax Reference Case No. 11 of 1983 (The
Commissioner of Income-Tax, Gujarat-I vs. Shri Arbuda Mills
Ltd.) this Court after considering the effect of the
amendment made in Section 263(1) of the Act by the Finance
Act. 1989 whereby lause (c) of the explanation was also
amended with retrospective effect from 1st June, 1988, held
that "the consequence of the said amendment made with
retrospective effect is that the powers under Section 263 of
the Commissioner shall extend and shall be deemed always to
have extended to such matters as had not been considered and
decided in an appeal. Accordingly, even in respect of the
aforesaid three items, the powers of the Commissioner under
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Section 263 shall extend and shall be deemed always to have
extended to them because those items had not been considered
and decided in the appeal filed by the assessee." In that
case the assessment was completed o 31.3.1978 and the Income
Tax Officer while computing loss and income of the assessee
had accepted the claim of the assessee in respect of those
three items. Obviously in the appeals filed by the assessee
those items were not the subject-matter of the appeals as
the decision in respect thereof was in its favour. In
respect of those three items the Commissioner had exercised
his power under Section 263 of he income-Tax Act and ,
therefore, the question which had arisen for consideration
was "whether on the facts and in the circumstances of the
case, the order of assessment passed by the ITO u/s 143(3)
read with section 144B on 31.7.1978 had merged with that of
the Commissioner (appeals) dated 15.10.1979 in respect of
the three items in dispute so as to exclude the jurisdiction
of the Commissioner of Income-Tax under sec 263?" Thus the
amendment made in clause @ was held applicable to the orders
passed before 1st June, 1988.
In South India Steel Rolling Mills, Madras vs.
Commissioner of Income Tax, Madras [1997 (9) SCC 728], the
Commissioner in exercise of his power under Section 263 had
withdrawn the development rebate granted for the years 1962-
63, 1963-64, 1967-68 and 1968-69 on the ground that since
the partnership stood dissolved on 3.3.1968 on the death of
one of the two partners, before the expiry of eight years
the assessee firm was not entitled to the benefit of the
development rebate under Section 33(1) (a) of the Act. The
said order passed by the Commissioner was challenged before
the Tribunal but the assessee’s appeal had failed. At its
instance the following question was referred to the Madras
High Court:-
"Whether on the facts and
circumstances of the case the
revision of assessment under
section 263 by the Commissioner for
withdrawing the development rebate
granted for Assessment years 1962-
63, 1963-64, 1967-68 and 1968-69 is
proper and justified."
The High Court also decided against the assessee. In
the appeal filed by the assessee the order of Commissioner
was challenged inter alia on the ground that the power under
Section 263 could have been invoked on the basis of the
record as it stood when the order was passed by the Income
Tax Officer and that it was not open to the Commissioner to
take into account dissolution of the assessee firm, which
took place after passing of the assessment order because
that circumstance was not disclosed by the record which was
before the Income Tax Officer. Rejecting this contention
this Court held "As regards his taking into consideration an
event which had occurred subsequent to the passing of the
order by the Income-Tax Officer, it may be stated that in
Explanation (b) in Section 263 there is an express provision
wherein it is prescribed that "record shall include and
shall be deemed always to have included all records relating
to any proceeding under this Act available at time of
examination by the Commissioner". The death of one of the
two partners resulting in the dissolution of the assessee
firm on account of such death took place prior to the
passing of the order by the commissioner and it could,
therefore, be taken into consideration by him for the
purpose of exercising his powers under Section 263 of the
Act." In that case also the amendment was held applicable to
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an order passed before 1st June, 1988.
We, therefore, hold that it was open to the
Commissioner to take into consideration all the records
available at the time of examination by him and thus to
consider the Valuation Report submitted by the Departmental
Valuation Cell subsequent to the passing of the assessment
order and, so the order passed by him was legal. The High
Court was wrong in taking a contrary view. We, therefore,
allow this appeal, set aside the judgment and order passed
by the High Court and answer the question referred to the
High Court in the negative i.e. in favour of the Revenue and
against the assessee. In view of the facts and circumstances
of the case, there shall be no order as to costs.