Birla Cotsyn (India) Limited, Mumbai vs Principal Commissioner Of Income Tax - ... on 2 January, 2019
In other words, any material which comes 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
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ITA No.3503 & 3504/Mum/2018
Birla Cotsyn (India) Limited
Assessment Years :2009-10 & 10-11
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." (p. 452)
The Calcutta High Court interpreted the word 'record' under section 263(1) before it was amended by
the Finance Acts, 1988 and 1989. Following that decision of the Kerala High Court in CIT v. M.A.
Unneerikutty [1992] 194ITR 546, also took the same view. In that case attention of the Kerala High
Court was drawn to the amendments made by the Finance Acts, 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) was, 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 1-6-1988.