TaxTMI 
TaxTMI 
2015 (3) TMI 575
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.... had prayed for cancellation of the show-cause notice dated February 3, 2014, issued under section 263 of the Income-tax Act 1961 (for short "the 1961 Act") and also, inter alia, prayed for a writ in the nature of mandamus commanding respondent No. 2 to supply the satisfaction recorded before issuance of the said show-cause notice. It appears the learned single judge had granted liberty to the writ petitioner to file supplementary affidavit containing the records disclosed by the Department. Such records revealed, on January 29, 2014, 29 files were received by the Commissioner of Income-tax, Kolkata-II (hereinafter referred to as "the said Commissioner") which contained the record of the assessment proceedings of the writ petitioner. It ....
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....r not, can be tested by a higher authority who have been bestowed with the power of appeal. Section 253 of the Act provides a remedy of appeal against an order passed under section 263 of the Act by the Commissioner and, therefore, such remedy is required to be resorted to by the petitioner. This court, therefore, does not find any merit in the writ petition." Mr. Bharadwaj, learned advocate appearing for the writ petitioner, submitted the said Commissioner had neither called for, examined nor considered the assessment proceedings before putting his signature in approval of the draft notice which notice was then issued to the petitioner also under his signature. He submitted the Commissioner, under section 263 of the 1961 Act, assumes....
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....h the records were called for and brought to the office of the said Commissioner, it was apparent all steps were taken by the Deputy Commissioner of Income-tax and not by the said Commissioner as postulated under section 263. He submitted under the statutory provision there has to be some communication between the Commissioner and the Assessing Officer which was absent in the instant case. He, however, fairly submitted all assessment orders are subject to audit scrutiny which throws up those cases which might require the attention of the Commissioner in the matter of issuance of notices under section 263 of the 1961 Act. During the hearing of this matter we had called upon the Revenue to once again produce the records of the case. Mr. Dh....
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....ing put his signature in approval of the draft notice put up with the file and having issued the said show-cause notice dated February 3, 2014, the same is sufficient compliance by the said Commissioner in the facts and circumstances, discussed above. The Commissioner had complied with the provisions contained in section 263 of the 1961 Act in the matter of calling for, examining the records of the assessment proceedings to consider the necessity of issuing such show-cause notice. It is to be noted Mr. Bharadwaj, in the course of his argument, had relied on the following judgements : 1. CIT v. G. M. Mittal Stainless Steel P. Ltd. [2003] 263 ITR ....
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....e the mere ipse dixit of the Commissioner." It appears the Supreme Court had found the satisfaction of the Commissioner must be objectively justifiable in considering an order passed by him under the said section. In this matter there is no challenge to the order made by the said Commissioner. The judgment in Chhugamal Rajpal (supra) is also distinguishable as the provision contained in section 151(2) of the old Act does not find place in section 263 of the 1961 Act and, thus, is not applicable to the present case. So far as the judgment in CIT v. Karam Chand Thapar and Sons Ltd. (supra) is concerned, it would ; be appropriate to set out the relevant portion of the said judgment, which is as under (page 372 of 186 ITR) : &nbs....
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....der section 263 of the 1961 Act, the Commissioner may call for and examine the records and if he considers any assessment order is erroneous and is prejudicial to the interests of the Revenue he may, after giving the assessee an opportunity of being heard and after causing such enquiry, pass such order thereon. In the case in hand, we find the petitioner had challenged the issuance of the show-cause notice itself before "making of the order". It is only upon "making of the order" the appellant/petitioner might, from the face of it, show whether there was consideration or not, particularly in the facts we have found and the view taken above. We have also considered the judgment in Russell Properties Pvt. Ltd. v. A. Chowdhury, Addl. CIT [1....