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Commissioner of Income-tax Versus Vallabhdas Vithaldas

2015 (3) TMI 1234 - GUJARAT HIGH COURT

Revision u/s 263 - interpretation of the term 'record' appearing in section 263 - Held that:- Section 154 of the Act as is well-known is in the nature of power of rectification of mistake. Sub-section (1) thereof clothes the Income-tax authority with a view to rectifying any mistake apparent from the record the power to amend any order passed under the Act, amend any intimation or deemed intimation under section 143(1) or amend any intimation under sub-section (1) of section 200A. The term 'reco .....

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ly, reference to the mistake apparent from the record cannot have relation to some other record extraneous to the assessment proceedings. This provision, therefore, has an entirely different context where the term 'record' has been used and it does not include any explanation as was inserted in section 263(1) with a historical background noted by the Supreme Court in the case of Shree Manjunathesware Packing Products Camphor Works (1997 (12) TMI 4 - SUPREME Court ). Significantly, the explanatio .....

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h consisting of Justice M.S.Shah and Justice D.A.Mehta. The question pertained to the interpretation of section 263 of the Income Tax Act, 1961 ('the Act' for short) namely what would form the records which the Commissioner could place reliance upon for taking an order of assessment in revision. Learned members of the Bench had difference of opinion and the issue, therefore came to be referred to third Judge in terms of section 259 of the Act. To be able to appreciate the point of diverg .....

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welery were seized. It was claimed that such assets belonged to various members of the family. Two statements of Savitaben Vallabhdas, wife of the assessee were also recorded in which, she claimed that some of the assets belonged to her. Upon scrutiny of the record of assessment, the Commissioner of Income Tax, Rajkot noted that the Income Tax Officer had not taken into consideration the explanation of Girishkumar Vallabhadas, son of the assessee and further that he had not considered the variou .....

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ot form part of the record of the assessee's assessment proceedings and therefore, such documents could not form the basis of any action under section 263 of the Act in case of the assessee. The Tribunal upheld the contention and held that the Commissioner could intervene only on the basis of the record of the assessment proceedings of the assessee and that the statements recorded at the time of search of the premises of the son of the assessee cannot form the basis of any action under secti .....

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ming part of assessment of the assessee and thus the action was invalid ?" 3. Justice M.S.Shah was of the view that the issue was covered by the decision of the Supreme Court in the case of CIT v. Shree Manjunatheware Packing Products & Camphor Works [1988] 231 ITR 53 and noted as under: '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 " .....

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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 Ganga Properties v. ITO [1979] 118 ITR 447 on which the Tribunal had relied while passing the order giving rise to these references. 7. As regards the reasoning which appealed to the Tribunal, the word "therein" is not necessarily capable of the interpretation which appealed to the Tribunal. When the Commissioner examines the record of search a .....

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d to the record of that assessee's case as such record could be any record relating to any proceeding under the Income-tax Act. There is nothing in the provisions of Section 263(1) to take such a narrow view of the powers of the Commissioner. Any doubt which could arise has been removed by the legislature by inserting through the Finance Act, 1988 an explanation and further amending it by Finance Act, 1989. The interpretation of the provisions of Section 263(1) read with explanation thereto .....

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by the Supreme Court.' Consequently, since the Tribunal had set aside the order of the Commissioner only on this ground, in his opinion, the matter would have to be remanded before the Tribunal for consideration on merits. 4. Justice D.A. Mehta was unable to conform to the said opinion. He gave a differing opinion. Relying on several decisions of the Supreme Court including in the case of Malabar Industrial Co. Ltd. v. CIT [2000] 243 ITR 83/109 Taxman 66 the learned Judge observed that the .....

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e was of the opinion that the issue at hand was not concluded by the decision of the Supreme Court in the case of Shree Manjunathesware Packing Products Camphor Works (supra). He was of the opinion that the term 'record' used in section 263 would not include the statement of the son of the assessee since there was nothing on the record to show these statements had come on record of the assessee. In his opinion, words "any proceedings under the Act" would not extend to a proceed .....

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sessee, and thus, the action under section 263 of the Act was invalid. The question referred is therefore answered in the affirmative i.e. in favour of the assessee and against the revenue in both the references." 5. For some reason, the reference to the third member remained dormant for a long time. In the meantime, many developments in law took place giving a whole new dimension to this reference to the third member for his opinion. 6. Since this reference throws up a couple of interestin .....

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TR 232/123 Taxman 682, a similar question arose in the background of the Wealth Tax Act, 1957. In that case, the Commissioner of Wealth Tax had taken assessment orders passed by the Wealth Tax Officer to be prejudicial to the interest of the Revenue, as the value determined by the District Valuation Officer was higher than the value assessed by the assessee's valuer and that there was gross under-statement. The Commissioner, therefore, under section 25(2) of the Wealth Tax Act, 1957 set asid .....

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The Division Bench allowed the appeal making following observations: "Having heard the learned counsel for the revenue and having perused the aforesaid decisions, we find considerable substance in the submissions made by Mr Tanvish Bhatt, learned counsel for the revenue. In CIT v. Shree Manjunathesware Packing Products and Camphor Works (supra) the Supreme court interpreted a parimateria provision of Section 263 of the Income-tax Act and held that while calling for and examining the record .....

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ve Petitions summarily did not mean that the Supreme Court approved the view that was taken by the Gujarat High Court in the case of Rajeshree S. Parekh. The Court explained the legislative history of Section 263 with particular reference to the controversy about the scope of the expression "record" and observed that if on further examining the record and after making or causing to be made an inquiry, the Commissioner considers the order to be erroneous and prejudicial to the interest .....

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l which had already come on record though subsequently to the making of the assessment cannot be taken into consideration by him. Hence, the Apex Court concluded that it was open to the Commissioner not only to consider the record of that proceeding but also the record relating to that proceeding available to him at the time of examination. 6. The Madras High Court followed the aforesaid decision in CWT v. S.V. Sivarathina Pandian (supra) which was concerned with a case similar to the case befor .....

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greeing with the aforesaid view of the Madras High Court, we are of the same view that the Commissioner of Wealth-tax was justified in setting aside the assessment made by the Wealth-tax Officer and in directing the Wealth-tax Officer to recompute the correct net wealth and tax after considering the valuation made by the Departmental Valuer." 8. Yet again, in the case of CIT v. Arunaben Sumankumar [2003] 259 ITR 386/[2002] 124 Taxman 57 (Guj.), the assessment framed by the Assessing Officer .....

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uch ornament and therefore, set aside the assessment directing the assessing officer to frame fresh assessment in accordance with law. Once again, the Tribunal held that the Commissioner could not have taken action under section 263 of the Act in the case of the assessee on the basis of record in case of other persons. The High Court placing reliance on the decision of Shree Manjunathesware Packing Products and Camphor Works (supra) allowed the Revenue's appeal observing as under: "Foll .....

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the cases of other persons. Our answer to the question is accordingly in the negative i.e. in favour of the revenue and against the assessee." 9. In the background of such developments, the first question that crops up is about the binding effect of such pronouncements. Whether such judgments of the Division Bench of this Court would bind me as a referee Judge or since the ultimate opinion that I may express in these references would be as a culmination of application of judicial mind by t .....

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xercise would result into declaration of legal proposition by three Judges, the Division Bench judgments would not be binding. He, however, did agree that the third Member's opinion would be without deliberation between three Judges and in that context the present situation is unique. He, however, submitted that none of the aforesaid decisions conclude the issue arising in these references. He submitted that in both the cases the record relied upon by the Commissioner pertained to the same a .....

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ree from the binding precedents, the same would lead to great uncertainty and anarchy. Quite apart from the binding effect of the ratio laid down by the Supreme Court which becomes law of the land by virtue of Article 141 of the Constitution, even other courts follow the principle of precedent where one Bench would be bound by the decision of a Bench of coordinate strength or larger Benches. In the case of Chandra Prakash v. State of U.P. , AIR 2002 SC 1652, the Supreme Court observed as under: .....

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sion Bench of the same or similar number of Judges. It is in furtherance of this enunciation of law, this Court in the latter judgment of Parija (supra) held that- "But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very in correct that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges stating out the reasons why it could not agree with the earlier j .....

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to promote consistency and certainty in the development of the law and its contemporary status that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges. In the case of Rajasthan Public Service Commission v. H.R.Purohit AIR 2003 SC 3476, it was observed that the earlier decision of Division Bench is binding to a Bench of co-ordinate strength. If the .....

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h an issue. 14. The legal proposition, therefore, that the decision of a Division Bench of this Court would bind another Bench of equal strength is well laid down. It is equally well settled that if the same were to come up for consideration before a Bench of three or more Judges, the Division Bench view would not form a binding precedent. In this context, we may examine the scope of a third Judge to whom such a reference is made. 15. This reference is made in terms of section 259 of the Act, wh .....

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and such point shall be decided according to the opinion of the majority of the judges who have heard the case including those who first heard it." In terms of sub-section (1) of section 259, reference to the High Court is to be heard by a Bench of not less than two Judges and would be decided in accordance with the opinion of such judges or majority of them. Sub-section (2) of section 259 provides that if there is no such majority, the judges should state the point of law upon which they d .....

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referred to one or more other judges of the same High Court and in terms of the opinion of the majority of all the judges, the issue would be decided. It is clear from such provisions that hearing such reference is vitally different from a Bench of three Judges hearing any case or a point of law which is referred to such a Bench for its opinion. In case of a larger Bench of three or more Judges hearing such an issue, the Bench would be taking a collective decision on the point at issue. Such dec .....

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f the chamber debate, deliberate and exchange their views and opinions tentatively arrived at during the course of the arguments. Even thereafter, draft opinions may be exchanged. The members of the Bench may put their view points persuading the others to adopt the same. Some may yield to the view point of the other and in some cases, the Judges may ultimately find themselves simply unable to come to a unanimous conclusion. Whether such deliberations ultimately result into any unanimous decision .....

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a Constitution Bench judgment in the case of Minerva Mills Ltd. Union of India AIR 1980 SC 1789. "84. I may point out at this state that the arguments on this question were spread over a period of about three weeks and considerable learning and scholarship were brought to bear on this question on both sides. The hearing of the arguments commenced on 22nd October 1979 and it ended on 16th November 1979. I hoped that after the completion of the arguments on questions of such momentous signifi .....

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1461). The learned Chief Justice started his judgment in that case by observing. I wanted to avoid writing a separate judgment of my own but such a choice seems no longer open. We sat in full strength of 13 to hear the case and I hoped that after a free and frank exchange of thoughts, I would be able to share the views of some one or the other of my esteemed brothers, but we were over-taken by adventitious circumstances," namely, so much time was taken up by counsel to explain their respec .....

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rt is overburdened, no judicial conference or discussion was held nor was any draft judgment circulated which could form the basis of discussion, though, as pointed out above, the hearing of the arguments concluded as far back as 16th November, 1979. It was only on 7th May, 1980, just two days before the closing of the Court for summer vacation, that I was informed by the learned Chief Justice that he and the other three learned Judges, who had heard this case along with me, had decided, to pass .....

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g the reasons why the learned Chief Justice and the other three learned judges were inclined to strike down the constitutional amendments. If there had been a judicial conference or discussion or the draft judgment setting out the reasons for holding the impugned constitutional amendments ultra vires and void had been circulated, it would have been possible for me as a result of full and frank discussion or after considering the reasons given in the draft judgment, either to agree with the view .....

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ed to say that they will express their individual opinion, ignoring their colleagues and without discussion the reasons with them and even without circulating their draft judgment so that the colleagues have no opportunity of participating in the collective decision making process. This would introduce a chaotic situation in the judicial process and it would be an unhealthy precedent which this Court as the highest Court in the land - as a model judicial institution which is expected to set the .....

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lly affect the winning party, this Court, does, in the larger interests of justice pronounce an order and give reasons later, but these are exceptional cases where the requirements of justice induce the Court to depart from the legally sanctioned course. But, there (sic-here?) the court had in fact waited for about 5½ months after the conclusion of the arguments and there was clearly no urgency which required that an order should be made though reasons were not ready; the delay of about 2 .....

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9th May, 1980 declining to pass the unreasoned order pronouncing on the validity of the impugned constitutional amendments and stating that I would "prefer to pass a final order in this case when I deliver my reasoned judgment". This order unfortunately led to considerable misunderstanding of my position and that is the reason why I have thought it necessary to explain briefly why I acted in the manner I did." 18. Learned counsel Mr.Bandish Soparkar drew my attention to an articl .....

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allenge one another to consider possibilities an individual judge would overlook. In the Supreme Court, the Justices meet soon after oral argument for a private conference that facilitates this process of personal study and collaborative deliberation The Justices explain their tentative views on the proper outcome of an argued case. The conference results in initial opinion assignments, and the process of study and deliberation continues as the Justices circulate and comment and drafts of majori .....

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shing the goals the legal system seeks to advance." In the same article reference is also made to the remarks by Cardozo, J. as under: "The eccentricities of judges balance one another. One judge looks at problems from the point of view of history, another from that of philosophy, another from that of social utility, one is a formalist, another a latitudinarian, one is timorous of change, another dissatisfied with the present; out of the attrition of diverse minds there is beaten somet .....

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hone and improve her own positions in response to critical peer scrutiny and persuasion." It can thus be seen that the law of precedent heavily relies on the collective decision making process where multiple legal minds are simultaneously applied assisted by legal research and presentation of legal arguments. When such materials and legal contentions are processed by several judges, the decision that is rendered even if not unanimous has the advantage of input from larger number of legally .....

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d the Bench of equal or lesser number of judges even if it is not a unanimous opinion. Under the circumstances, I feel bound by the decisions of the later Division Benches on the point which arises directly in the present reference. Independently also, I would have arrived at the same conclusion. I would state my brief reasons for the same. 19. Section 263 of the Income-tax Act, as is well-known, pertains to the power of the Commissioner to call for and examine the record of any proceedings and .....

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s to have included all records relating to any proceeding under this Act available at the time of examination by the Principal Commissioner or Commissioner. One may notice the words "shall include and shall be deemed always to have included" for the original expression "includes" with effect from 1.6.88. The explanation itself was introduced with effect from 1.10.84. These legislative changes came up for consideration before the Supreme Court in the case of Shree Manjunathesw .....

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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, .....

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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. …… (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 .....

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n 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 his substitution read as follows : "Explanation.- For the removal of doubts, it is hereby declared that, for the purposes of this sub-section,- (b) "record" includes al .....

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89 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 orders 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 .....

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fied 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, 1988, to clarify this legal position to 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. Suc .....

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by declared that, for the purposes of this sub-section,- (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 by the Commissioner;" "Therefore, the materials which were not in existence at the time the assessment was made but afterwards 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 c .....

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s into existence later on cannot form part of the record of the ITO for the purposes of invoking the Commissioner's power under Section 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 li .....

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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 .....

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er 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 be 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 to consider the record of that proceeding but also the record r .....

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he context of section 263 of the Income Tax Act observed as under: "Even question No.3 is also of academic interest only. However, the matter now stands concluded by the judgment of the apex court in CIT v. Shree Manjunathesware Packing Products and Camphor Works [1998] 231 ITR 53, in which it has been held that the expression "record" in section 263 means the record available at the time of examination by the Commissioner of Income-tax and is not confined merely to the material a .....

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ion to section 263(1) 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 to consider the record of that proceeding but also the record relating to that proceeding available to him at the time of examination. Respectfully following the aforesaid decision, we are of the considered opinion that the Tribunal was not justified in limiting the record which was available before the Income-tax Officer at the time of asses .....

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th-tax Officer at the time of completion of assessment and it will include all such documents, materials which are on record at the time when the Commissioner of Wealth-tax examined and decided to initiate proceeding. He relied upon a decision of the apex court in the case of CIT v. Shree Manjunathesware Packing Products and Camphor Works [1998] 231 ITR 53 wherein the Supreme Court has held that in view of the clear words used in clause (b) of the Explanation to section 263(1) of the Act, it is .....

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d in holding that the valuation report could not have been taken into consideration by the Commissioner of Wealth-tax. We accordingly answer the questions in the negative, i.e. in favour of the Revenue and against the assessee." 23. Delhi High Court in the case of Globus Infocom Ltd. v. CIT [2014] 369 ITR 14/227 Taxman 48 (Mag.)/50 taxmann.com 100 observed as under: "An order is not erroneous, unless the Commissioner of Income-tax hold and records reasons why it is erroneous. An order .....

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time when the order in question was passed by the Assessing Officer but also the record as it stands at the time of examination by the Commissioner of Income-tax (see CIT v. Shree Manjunathesware Packing Products and Camphor Works [1998] 231 ITR 53 (SC). Nothing bars/prohibits the Commissioner of Income-tax from collecting and relying upon new/additional material/evidence to show and state that the order of the Assessing Officer is erroneous." 24. We may, however, notice that the Andhra Pra .....

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awn. It can be seen that consistently after the amendment in section 263(1) of the Act by insertion of the explanation and the decision of the Supreme Court in the case of Shree Manjunathesware Packing Products Camphor Works (supra), the courts have found the power of the Commissioner to take into account any record was wide enough and not confined to the record of the assessee which was before the assessing authority. 25. Learned counsel Shri Soparkar, however, drew my attention to various deci .....

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