Vs.

Judges: S.C. AGRAWAL & G.B. PATTANAIK, JJ.

Date of Judgment: Feb 25, 1997

Revision

Under section 263 by Commissioner of Income Tax – Held power of rectification under Section 155 and power of Commissioner of Income Tax under Section 263 are distinct powers – Power under Section 263 is of wide amplitude – Held no reason to limit the power by reference to Section 155 – Further held that as per Explanation (b) to Section 263 record included all records available at the time of examination by Commissioner and death of partner and dissolution have taken place before, the same could be considered by commissioner.

As pointed out by the High Court, no question as to the competence of the Commissioner to exercise his powers of decision was raised by the assessee either before the Commissioner or before the Tribunal. Even otherwise there is no merit in this contention. Merely because the Income Tax Officer could have rectified the order, the Commissioner could not be precluded from exercising the power conferred on him under Section 263. The power of rectification conferred on the Income Tax Officer under Section 155 and the power of revision conferred on the Commissioner under Section 263 are distinct powers. The principle that one is a special provision and the other is a general provision has no application. The revisional power conferred on the Commissioner under Section 263 is of wide amplitude. It enables the Commissioner to revise an order passed by the Assessing Officer if he considers it to be erroneous and prejudice to the interests of the Revenue. We find no reason to limit this power by reference to Section 155.

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 the 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. (Para 11 & 12)