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TMI Blog2015 (3) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... order sheet for putting up the draft notice under section 263 of the 1961 Act as well as issued the said show-cause notice as evident from annexure P2 to the writ petition appended to the application for stay. We hold that having put his signature in approval of the draft notice put up with the file and having issued the said show-cause notice dated February 3, 2014, the same is sufficient compliance by the said Commissioner in the facts and circumstances, discussed above. The Commissioner had complied with the provisions contained in section 263 of the 1961 Act in the matter of calling for, examining the records of the assessment proceedings to consider the necessity of issuing such show-cause notice. - Decided against assessee. - GA No.1911 of 2014, APO No.212 of 2014, WP No.281 of 2014 - - - Dated:- 19-8-2014 - SOUMITRA PAL AND ARINDAM SINHA, JJ. For the Appellant : Mr. R. Bharadwaj, Adv. For the Respondent : Mr. P. Dhuduria, Adv. JUDGEMENT This appeal has been filed against the judgment and order dated May 8, 2014, passed by the learned single judge in the writ petition, being W. P. No. 281 of 2014 (Zigma Commodities Pvt. Ltd. v. ITO [2014] 365 ITR 276 (Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order passed under section 263 of the Act by the Commissioner and, therefore, such remedy is required to be resorted to by the petitioner. This court, therefore, does not find any merit in the writ petition. Mr. Bharadwaj, learned advocate appearing for the writ petitioner, submitted the said Commissioner had neither called for, examined nor considered the assessment proceedings before putting his signature in approval of the draft notice which notice was then issued to the petitioner also under his signature. He submitted the Commissioner, under section 263 of the 1961 Act, assumes jurisdiction only after having called for, examined and considered the records and since, in the instant case, it did not appear he had done so, the entire exercise was without jurisdiction as not in compliance with the statutory provision. In order to appreciate the issue, it is appropriate to set out the relevant portion of section 263 of the 1961 Act which is as under : 263. The Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Assessing Officer is erroneous in so far as it is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AN : AAACZ3447P A.Y. : 2009-10, Ward-5(3), Kolkata. A draft notice under section 263 of the Income-tax Act, 1961, in the above case having PAN : is put up for your kind approval if found deem fit. Put up for kind perusal and signature, if approved ? (Sd.) . . . . . . . 3-2-2014 CIT, KOL-II, Kolkata (Sd.) . . . . . . . Hqrs.-2, Kolkata We find the said Commissioner had put his signature on the order sheet for putting up the draft notice under section 263 of the 1961 Act as well as issued the said show-cause notice as evident from annexure P2 to the writ petition appended to the application for stay. We hold that having put his signature in approval of the draft notice put up with the file and having issued the said show-cause notice dated February 3, 2014, the same is sufficient compliance by the said Commissioner in the facts and circumstances, discussed above. The Commissioner had complied with the provisions contained in section 263 of the 1961 Act in the matter of calling for, examining the records of the assessment proceedings to consider the necessity of issuing such show-cause notice. It is to be noted Mr. Bharadwaj, in the course of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attentively, to contemplate mentally, to think over, mediate on, given heed to, take note of, to think deliberately, bethink oneself to reflect' (vide Shorter Oxford Dictionary). According to Words and Phrases (Permanent Edn., Volume 8A) to 'consider' means to think with care. It is also mentioned that no 'consider' is to fix the mind upon with a view to careful examination ; to ponder, study, meditate upon, think or reflect with care. It is, therefore, manifest that careful thinking or due appli cation of the mind regarding the necessity to obtain and examine the documents in question is a sine qua non for the making of the order. If the impugned order were to show that there has been no careful thinking or proper application of the mind as to the necessity of obtaining and examining the documents specified in the order, the essential requisite to the making of the order would be held to be non-existent. We find from the above judgment consideration of the documents is sine qua non for 'making of the order'. In our view, under section 263 of the 1961 Act, the Commissioner may call for and examine the records and if he considers any assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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