More than dissatisfaction. Explanation 2, inserted with effect from 1 June 2015, deems an order erroneous and prejudicial where it was passed without inquiries or verification which should have been made, but the Tribunal has read it as a deeming provision to be construed strictly and not as a power to revise because the Commissioner would have asked more questions. The working line is still the old one: no inquiry is revisable, inadequate inquiry generally is not.
What the Explanation says. Explanation 2 to s.263(1) deems an order passed by the Assessing Officer to be erroneous in so far as it is prejudicial to the interests of the revenue if, in the opinion of the Principal Commissioner or Commissioner, it was passed without making inquiries or verification which should have been made, or allowed relief without inquiring into the claim, or was not in accordance with an order, direction or instruction issued by the Board under s.119, or was not in accordance with a decision prejudicial to the assessee rendered by the jurisdictional High Court or the Supreme Court.
What the Tribunal has done with it. The itatonline collection of s.263 case law records three lines of decision on the Explanation. Mahesh Kumar & Ors. vs. CIT (ITA Nos. 1303-1316/Kol/2019, dated 29 November 2019) treats it as a deeming provision requiring strict construction, and the Commissioner's opinion as one that must be considered and fact-based rather than arbitrary. Bodhisattva Chattopadhyay vs. CIT (ITA No. 1314/Kol/2019, dated 15 November 2019) holds it applies only when one of the four conditions in it is satisfied. Torrent Pharmaceuticals Ltd. vs. DCIT (2018) 173 ITD 130 (Ahd)(Trib) - already in this library - holds the Explanation is clarificatory, does not dilute the requirements of s.263(1), and does not permit revision merely because the Commissioner thinks the inquiry could have been more thorough. Narayan Tatu Rane vs. ITO [2016] 70 taxmann.com 227 (Mum)(Trib) is described in the same collection as having examined whether the Explanation operates prospectively or retrospectively; that decision was not read for this entry.
So the twin conditions have not gone. The Delhi High Court in PCIT v. Sangeeta Jain restored a revision on a record that showed no verification at all of the claim that the land sold was agricultural, and in doing so kept both requirements - the order must be erroneous and it must be prejudicial - and kept the distinction between a lack of inquiry, which s.263 reaches, and an inadequate inquiry, which it does not. That is the shape of the fight in practice: the Commissioner says nothing was examined, and you answer with the file.
Dates matter twice over. The Explanation applies from 1 June 2015, and there is a Tribunal line that it does not affect assessments of earlier years - the TaxGuru note of Brahma Center Development Pvt. Ltd. v. PCIT, held in this library, records the order as having noticed a Mumbai Bench observation to that effect, which the Delhi Bench then followed in Arun Kumar Garg (HUF) v. PCIT; I did not read either of those decisions, so do not cite Brahma Center itself as the authority for the prospectivity point. Separately, the two-year limitation in s.263(2) runs from the end of the financial year in which the order sought to be revised was passed, and where an intervening reassessment has been made the corpus already carries CIT v. Alagendran Finance on which order the clock runs from.
How the reply is built. The answer to an Explanation 2 notice is documentary, not rhetorical. The s.142(1) questionnaire that raised the issue, the reply that answered it, the annexures filed with the reply, and any note in the assessment order recording the explanation are what convert 'no inquiry' into 'a view taken on material'. Once the record shows that, Malabar Industrial and Max India - both in this library - do the rest, because the Commissioner is then substituting his opinion for a permissible one.
One limit worth knowing. Explanation 2 speaks of inquiries which should have been made. It does not say the Commissioner may set the assessment aside without identifying which inquiry was missing and why it mattered. The Ahmedabad Bench in Torrent Pharmaceuticals put that as requiring the omitted inquiry to have an important bearing on the issue. A notice that recites the Explanation and nothing else is the notice most worth answering on this ground.
Practically every s.263 notice issued now opens with Explanation 2, and if it is read as written it converts a discretionary revisional power into an audit of how many questions the officer asked. What keeps assessments standing is the record: an officer who asked and an assessee who answered. That is why the reply to a s.263 show-cause is an exercise in reproducing the assessment file rather than in arguing the merits of the underlying claim - the merits are not the issue at that stage.
We charge fees for our public utility work. Does that cost us charitable status under s.2(15)?
My return was only processed under 143(1). Does that stop the department reopening it later?
The Assessing Officer wants to tax what my client received on redemption of stock appreciation rights granted by the foreign parent as a perquisite. Is there Supreme Court authority on this?
My society runs a college and ended the year with a surplus. Does that surplus mean we no longer exist solely for educational purposes and not for profit?
The Income-tax Officer examined witnesses behind my back and used their statements against me. Is that material evidence at all?
A reassessment was done in between. Does the two-year clock for s.263 restart from it?
Can the Commissioner revise on a ground that was not in the show cause notice?
Can I go straight to the High Court against an income-tax order instead of filing the statutory appeal?
Every page in this library links to what it was written from, so you can check it rather than take our word for it.