COMMISSIONER OF INCOME TAX Vs. UNNEERIKUTTY M A

JUDGEMENT

(1.) THE common question that is referred to us for our opinion reads :

(2.) FACTS relevant and requisite to dispose of the dispute lie in a narrow compass. The year of assessment is 1975-76. As the order of assessment, according to the Commissioner, was erroneous in so far as it was prejudicial to the interests of the Revenue, the same was sought to be revised by invoking Section 263 of the Income-tax Act. The Commissioner, it could be seen from the records, has had with him materials which the assessing authority had no occasion to consider but at the same time would show that the order of the assessing authority is erroneous, took into account and revised the order. That order was challenged by the assessees (the company as also the individual) before the Appellate Tribunal. The Appellate Tribunal went into the question elaborately and found that the Commissioner was not justified in relying on materials which were not there before the assessing authority at the time when the assessment was made. The said view of the Appellate Tribunal is supported by the ruling of the Calcutta High Court in Ganga Properties v. ITO [1979] 118 ITR 447.

(3.) IT can be seen from the discussion above that the Tribunal had no occasion to consider the scope of this provision and, therefore, it cannot be said that the above argument, touching upon this question, does arise out of the order of the Tribunal. The only aspect that is required to be considered is as to whether the Tribunal was justified in holding that the Commissioner has no power to look into the materials which were not available at the time when the assessing authority passed the order.