Kalyan Jyoti Sengupta J. - (1.) BY this application the petitioner has challenged the impugned order of the Commissioner of Income-tax dated March 17, 1997, whereby and whereunder the Commissioner has declined to entertain the application for revision made under Section 264 of the Income-tax Act, 1961 (hereinafter referred to as "the said Act"). Of course, he has recorded reasons for not entertaining the revision application. He has said in his cryptic order that from the perusal of the assessment records and the report of the Assessing Officer it appears that despite opportunity being given the assessee failed to produce evidence regarding investment made by the petitioner. The assessee-petitioner was also asked to produce personal drawings but no particulars were produced. Therefore, the Commissioner felt that discretion should not be exercised in entertaining the application for revision for making an enquiry. Mr. Khaitan, learned counsel appearing for the petitioner, while assailing the impugned order contends that the impugned order is bad patently as the Commissioner has failed to consider the scope and purview of Section 264 of the said Act, which fortunately is much wider than the power vested under Section 263. Power of Section 263 is exercised in a case where the impugned order sought to be revised is erroneous and prejudicial to the interests of the Revenue. Upon comparative study of both the sections it will appear that the power of Section 263 can be exercised suo motu, and to protect the interests of the Revenue if affected or prejudiced by the impugned order, whereas power of Section 264 can be exercised amongst others on an application from the assessee or even suo motu. In other words the assessee has no right to apply under Section 263 of this Act. He further contends that the Commissioner ought to have enquired into this matter as to whether the petitioner-assessee failed to produce evidence or furnish particulars. The only exception is that in exercise of the power the Commissioner cannot pass any order prejudicial to the interests of the Revenue. He contends further that his client produced copies of the documents showing investments, which are required to be exempted. All required particulars were furnished with the application for revision. It is true that at the time of assessment his client could not produce the documents for a variety of reasons but, in exercise of this plenary jurisdiction the Commissioner should have done justice by allowing to furnish these documents so as to get exemption. According to him records means what are available at the time of the decision of the Commissioner, not limited at the time of passing order by the Assessing Officer. In support of his contention Mr. Khaitan has relied on decisions of various courts reported in CIT v. Shree Manjunathesware Packing Products and Camphor Works [1998] 231 ITR 53 (SC); Parekh Brothers v. CIT [1984] 150 ITR 105 (Ker); C. Parikh and Co. v. CIT [1980] 122 ITR 610 (Guj) and Ramdev Exports v. CIT [2001] 251 ITR 873 (Guj). Next he has cited [1991] 187 ITR (St.) 73 in order to show that the judgment of the Kerala High Court was sought to be assailed by filing an SLP, which has ultimately been dismissed by the Supreme Court. Mr. Deb, learned counsel appearing for the Revenue, contends that if one reads Section 264 of the said Act it will appear that it is absolutely a discretionary power, and the Commissioner, after having perused the records and report furnished by the Assessing Officer under the said section, thought it fit not to interfere with the order passed by the Assessing Officer. He further contends drawing my attention to Explanation 1 to Section 264 that an order by the Commissioner declining to interfere shall, for the purposes of the section, be deemed not to be an order prejudicial to the interests of the assessee. The Commissioner in lawful exercise of jurisdiction has found that the petitioner was always a defaulter and in spite of opportunity being given, the documents of investment and particulars thereof were not shown. As such the Commissioner will not give a premium to the lapses or laches of the assessee-petitioner. His further contention is that the petitioner-assessee is not affected in any manner by the order of the Assessing Officer, which was sought to be impugned before the Commissioner. Under those circumstances, he contends that this court in exercise of its extraordinary power should not interfere with the impugned order passed upon discretion. His next contention is that the question of principles of natural justice in this case does not arise. Moreover, he has reminded me of the applicability of the principles of natural justice. He further contends that each and every order is not necessarily required to be passed upon compliance with natural justice. One has to establish affectation of lawful right and that such right is sought to be taken away by the judicial and quasi-judicial authority in exercise of power. Here a report was furnished and copy thereof was not supplied to the petitioner and such non-supply of the report does not take away the petitioner's right of natural justice. In support of his contention he has relied on the following decisions : (1) CIT v. The Tribune Trust [1948] 16 ITR 214 (PC) ; (2) Jacob v. Additional Deputy Commissioner of Agricultural Income-tax [1986] 158 ITR 596 (Ker) [FB] ; (3) Managing Director, ECIL v. B. Karunakar [1994] 84 FJR 210 ; [1993] 4 SCC 727 ; (4) State Bank of Patiala v. S.K. Sharma, AIR 1996 SC 1669. His next contention is that the report of dismissal of the SLP is not a binding precedent. Dismissal of an SLP at the threshold is not the law laid down under article 141 of the Constitution of India. So this information of dismissal of SLP filed against the Kerala High Court judgment is of no help in this case. From the facts and disputes agitated before me by the parties through their learned counsel it is clear the issue is whether the impugned order by the Commissioner of Income-tax dated March 17, 1997, has been passed in lawful exercise of jurisdiction vested unto him under Section 264 of the Income-tax Act, 1961 (hereinafter referred to as "the said Act"), or not. It appears from the impugned order, I find the Commissioner declined to entertain the application of the writ petitioner under Section 264 of the said Act on the merits, because Mr. Khaitan's client was found to have failed to produce the evidence relating to the investment made by her despite repeated opportunity being given. Both learned counsel agreed to one point that the power of the Commissioner under Section 263 of the said Act is different from that of Section 264 of the said Act. From a comparative reading of both the sections it seems to me as correctly addressed by Mr. Khaitan that the provision of Section 263 of the said Act can be exercised when the Commissioner considers that any order passed by the Assessing Officer is erroneous and to the extent the same is prejudicial to the interests of the Revenue. The aforesaid provision cannot be applied at the instance of the assessee or even at the instance of the Revenue, it can only be done by the Commissioner himself. The provision of Section 264 of the said Act can be exercised by the Commissioner either of his own motion or on an application by the assessee. In this case the assessee made the application. It is the duty coupled with the power of the Commissioner to make an enquiry or call for records for enquiry. He is competent to pass such order as he may think fit but the same shall not be prejudicial to the interests of the assessee. Section 264 of the said Act for better understanding is quoted hereunder : "264.(1) In the case of any order other than an order to which section 263 applies passed by an authority subordinate to him, the Commissioner may, either of his own motion or on an application by the assessee for revision, call for the record of any proceeding under this Act in which any such order has been passed and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit. (2) The Commissioner shall not of his own motion revise any order under this section if the order has been made more than one year previously. (3) In the case of an application for revision under this section by the assessee, the application must be made within one year from the date on which the order in question was communicated to him or the date on which he otherwise came to know of it, whichever is earlier : Provided that the Commissioner may, if he is satisfied that the assessee was prevented by sufficient cause from making the application within that period, admit an application made after the expiry of that period. (4) The Commissioner shall not revise any order under this section in the following cases-- (a) where an appeal against the order lies to the Deputy Commissioner (Appeals) or to the Commissioner (Appeals) or to the Appellate Tribunal but has not been made and the time within which such appeal may be made has not expired, or, in the case of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal, the assessee has not waived his right of appeal; or (b) where the order is pending on an appeal before the Deputy Commissioner (Appeals) ; or (c) where the order has been made the subject of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal. (5) Every application by an assessee for revision under this section shall be accompanied by a fee of twenty five rupees. (6) On every application by an assessee for revision under this sub-section, made on or after the 1st day of October, 1998, an order shall be passed within one year from the end of the financial year in which such application is made by the assessee for revision. Explanation.--In computing the period of limitation for the purposes of this sub-section, the time taken in giving an opportunity to the assessee to be re-heard under the proviso to Section 129 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded. (7) Notwithstanding anything contained in Sub-section (6), an order in revision under Sub-section (6) may be passed at any time in consequence of or to give effect to any finding or direction contained in an order of the Appellate Tribunal, the High Court or the Supreme Court. Explanation 1.--An order by the Commissioner declining to interfere shall, for the purposes of this section, be deemed not to be an order prejudicial to the assessee. Explanation 2.--For the purposes of this section, the Deputy Commissioner (Appeals) shall be deemed to be an authority subordinate to the Commissioner." According to me the aforesaid provision can be invoked on the application of the assessee for his or its benefit or for prejudice. Upon enquiry if it is found that the assessee has been prejudiced by any order of the Assessing Officer, the Commissioner with this power can undo such wrong by adopting appropriate, just and lawful measure. The Division Bench of the Kerala High Court had the occasion to examine the scope of the provision of Section 264 of the said Act while deciding the case of Parekh Brothers v. CIT [1984] 150 ITR 105, 117 as cited by Mr. Khaitan. The above Division Bench discussed and considered the other decisions of the various High Courts and found that all the High Courts took the consistent view that the revisional power conferred on the Commissioner under Section 264 is very wide. He has the discretion to grant or refuse relief and the power to pass such order in revision as he may think fit. The discretion, which the Commissioner has to exercise, is undoubtedly to be exercised judicially, not arbitrarily according to his fancy. Therefore, subject to the limitations prescribed in Section 264 of the said Act the Commissioner in exercise of his revisional power under the said section may pass such order as he thinks fit which is not prejudicial to the assessee. There is nothing in Section 264 of the said Act which places any restriction on the Commissioner's revisional power to give relief to the assessee in a case where the assessee detects mistakes on account of which he was over-assessed after the assessment was completed. It is open to the Commissioner to entertain even a new ground not urged before the lower authorities while exercising revisional powers. The aforesaid judgment of the Kerala High Court has accepted the views on the same point, taken in the previous judgment of the Gujarat High Court rendered in the case of C. Parikh and Co. v. CIT [1980] 122 ITR 610. The relevant portion of the Gujarat High Court judgment (at page 613) is appropriately quoted hereunder : "It is clear that under Section 264, the Commissioner is empowered to exercise revisional powers in favour of the assessee. In exercise of this power, the Commissioner may, either of his own motion or on an application by the assessee, call for the record of any proceeding under the Act and pass such order thereon not being an order prejudicial to the assessee, as he thinks fit." It is further observed by the Division Bench (at page 614), that subject to some limitations as mentioned in these Sub-sections (2), (3) and (4) of Section 264 of the said Act revisional powers conferred on the Commissioner under Section 264 are very wide. He has the discretion to grant or refuse relief and the power to pass such order in revision as he may think fit. There is nothing in Section 264 which places any restriction on the Commissioner's revisional power to give relief to the assessee in a case where the assessee detects mistakes on account of which he was over-assessed after the assessment was completed. The argument of Mr. Deb that the discretionary orders cannot be interfered with by the High Court as the same contained reasons is in my view misplaced here, because the question is whether, on the facts and circumstances of this case, the Commissioner has exercised what he ought to have exercised his power on the merits in view of the wide amplitude of the section or not. His argument is that the order by the Commissioner declining to interfere (which is the case here) shall not be construed to be an order prejudicial to the interest of an assessee. I think the aforesaid explanation will be operative after the Commissioner exercises his jurisdiction lawfully meaning thereby considering all records produced before him ; he must apply his mind first ; while doing so, if he declines then the explanation may be applicable. I think the aforesaid explanation is inappropriate on the facts and circumstances of this case. It is not the grievance of Mr. Khaitan's client that they are prejudiced by the order of declining but the Commissioner's failure to make enquiry into this matter, take note of the documents produced before him. According to me the Commissioner in this case on receipt of the application instead of relying solely on the reports or the records of the case, should have made enquiry considering the documents placed before him by the petitioner. At least this should have been reflected in the impugned order that he had taken note on the date of making application of the revision, of the tax exempting investment. There might be varieties of reasons for not producing evidence at the time of the assessment; this does not mean that the assessee is precluded from producing evidence of contemporaneous nature at a later stage by filing an application for revision. The power under Section 264 of the Commissioner in my opinion is to do the justice, to prevent miscarriage of justice being rendered. It appears from the records that the petitioner produced unimpeachable documents showing investment which is otherwise liable to be taken note of for granting exemption and if it were allowed by the Commissioner then the petitioner would not have suffered for over-assessment. The expression "order prejudicial" means the prejudicial effect of an order passed by the revising officer on the merits. In the case reported in CIT v. The Tribune Trust [1948] 16 ITR 214, the Privy Council while dealing with amongst other scope of Section 33 of the Indian Income-tax Act, 1922 (since repealed) which is akin to Section 263 of the present Act, opined that a reference does not lie from an order under Section 33, unless that order is prejudicial to the assessee in the sense that he is in a worse position than before the order was made. In the case of Jacob v. Additional Deputy Commissioner of Agricultural Income-tax [1986] 158 ITR 596 the Full Bench of the Kerala High Court dealt with the provision of Section 30 of the Kerala Agricultural Income-tax Act, 1950, and held that the order passed by the Commissioner under the above section declining to interfere with the order of the Assessing Officer is not prejudicial to the assessee. There is no dispute to this proposition. In this case the question is whether the Commissioner exercised jurisdiction judiciously, while passing the impugned order so this judgment is not applicable in this case. Similarly, the judgment of the learned single judge of the Kerala High Court reported in S. A. Wahab v. ITO [1998] 232 ITR 624 is not helpful for issues involved in this case. The decisions cited by Mr. Deb in my view have no manner of application and the same do not help in this case in any manner. Therefore I think that the Commissioner has unjustly refused to entertain the petitioner's application. Accordingly this order impugned is set aside. I remit this matter back to the Commissioner for deciding the matter afresh on the merits and pass appropriate orders considering material or documents within the provision of Section 264 of the said Act taking note of my above observation. Thus the application is allowed to the extent as above.;