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TMI Blog2015 (12) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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. Also see COMMISSIONER OF INCOME TAX Versus VALLABHDAS VITHALDAS [2015 (5) TMI 615 - GUJARAT HIGH COURT ] The reference is, accordingly, answered in the negative, that is, in favour of the revenue and against the assessee. The Appellate Tribunal was not right in law in holding that the Commissioner of Income-tax had no jurisdiction to invoke the powers under section 263 of the Act and direct the Income-tax Officer to make enquiries regarding source of investment in purchase of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arat High Court decision in the case of Addl. C.I.T. Vs. Mukar Corporation (111 ITR 312). 4 The assessee raised objections as to the validity of exercise of jurisdiction by the Commissioner of Income-tax (hereinafter referred to as the Commissioner ). However, such objections came to be rejected by the Commissioner, who set aside the assessment by holding that the order passed by the Income-tax Officer was erroneous inasmuch as it was prejudicial to the interests of the revenue. After setting aside the assessment, the Commissioner directed the Income-tax Officer to make enquiries regarding the source of investment in purchase of silver bars amounting to ₹ 17,00,000 and ₹ 16,00,000 under section 69 of the Act and further observed that if the assessee does not satisfactorily explain the source of such bullion, the Income-tax Officer may treat the same as the income of the assessee. The assessee carried the matter in appeal before the Tribunal, which held thus: 6. In our opinion, the jurisdiction assumed by the Commissioner of Income-tax is not validly done. From the order of assessment it is of served that though the Inoce-tax officer has taken note of materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roversy regarding the case of Mukar Corporation (Supra) whatever applicable or not and the like. 5 Mr. M.R. Bhatt, Senior Advocate, learned counsel for the appellant, invited the attention of the court to the decision of the Supreme Court in the case of C.I.T. v. Manjunathesware Packing Products, (1988) 231 ITR 53 (SC), to submit that the expression record employed in section 263 of the Act, means the record of any person or proceedings and is not necessarily confined to the record of the assessee concerned. It was pointed out that the very issue had come up for consideration before this court in ITR No.65 of 1988 and 66 of 1988 wherein a dissenting opinion had been recorded vide judgement dated 9th November, 2001 and the matter at the relevant point of time was pending before the third Judge of the High Court. The court had, therefore, thought it fit to defer the matter till the learned third Judge decides ITR No.65 of 1988 and 66 of 1988. The learned counsel drew the attention of the court to the decision of this court in the case of Commissioner of Income-tax v. Vallabhdas Vithaldas, rendered in ITR No.65 of 1988 with ITR No.66 of 1988, whereby the court has answered ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner 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. This court, in Commissioner of Income-tax v. Vallabhdas Vithaldas, (supra) has answered the reference thus: In our view, the aforesaid observations of the Apex Court clearly give the widest meaning to the word record . It is also pertinent to note that while Section 263(1) uses the word record , the explanation goes further and states that the record includes all records relating to any proceeding under this Act. The use of the plural records and relating to any proceeding under this Act do not permit any limitation being placed on the power of the Commissioner that the power under Section 263(1) can be exercised only on the basis of the statements which are recorded in the course of search and seizure operations in respect of the very assessee and not in respect of any other person. The Apex Court has in terms overruled the decision of the Calcutta High Court in Ganga Properties' case (118 ITR 447) on which the Tribunal had relied while passing the order giving rise to these ..... X X X X Extracts X X X X X X X X Extracts X X X X
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