With respect to information given in Para 7, examine whether the action of the Commissioner in case of Khwab Pharma Ltd.is justified as to the…

The action of the Commissioner in issuing the second notice is not justified. The term “record” has been defined in clause (b) of Explanation 1 to section 263 (1) . According to this definition “record” shall include and shall be deemed always to have included all records relating to any proceeding under the Act available at the time of examination by the Commissioner. In other words, the information, material, report etc. which were not in existence at the time the assessment was made and came into existence afterwards can be taken into consideration by the Commissioner for the purpose of invoking his jurisdiction under section 263 (1) . However, at the same time, in view of the express provisions contained in clause (b) of the Explanation 1 to section 263 (1) , such information, material, report etc. can be relied upon by the Commissioner only if the same forms part of record when the action under section 263 is taken by the Commissioner. Issuance of a notice under section 263 succeeds the examination of record by Commissioner. In the present case, the Commissioner initially issued a notice under section 263, after the examination of the record available before him. The subsequent second notice was on the basis of material collected under section 133A, which was totally unrelated and irrelevant to the issues sought to be revised in the first notice. Accordingly, the material on the basis of which the second notice was issued could not be said to be "record" available at the time of examination as emphasized in Explanation 1(b) to section 263 (1) .