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2017 (6) TMI 550 - ITAT HYDERABADRevision u/s 263 - Held that:- If there is an order on 31.12.2008, certainly the DR would have brought it to the notice of the Tribunal on 1.10.09 when the assessee submitted that there was no such order and by efflux of time the appeal had become infructuous. We, therefore, find that there is nothing on record to suggest that, as a matter of fact, there was an order passed by the AO on 31.12.2008 u/s 144 r.w.s. 263 and that there was an error that had crept in the proceedings of the Tribunal, while accepting the plea of the Counsel on either side that there was no order pursuant to the revisionary order of the CIT (A) in this matter. Not only that the evidence placed on record indicates that the notice dated 19.12.2008 was not issued immediately to the assessee and it was received only on 2.2.2009, much later to the so called date of order. Even the order does not indicate that an opportunity has been issued on 19.12.2008 and the order indicates only those dates on which the assessee appears before the AO in the first assessment proceedings. Service of the impugned order as late as 17.04.2010 also indicates that the order could not have been passed before the order of the ITAT allowing the withdrawal of the appeal. The order of the ITAT was served on the assessee with the address at “Begum Bazar”, but the revised assessment order placed indicates the address as “LIC Colony, Secunderabad”. It is also noticed that the order was not sent by post as is the practice in the Department, but through process server which is unusual. Only his report was relied that assessee was not available in the given address. For these reasons, we are of the considered opinion that the submissions of the assessee that there was no order passed within the due date, pursuant to the revisionary order u/s 263 of the Act, go unchallenged and unimpeachable, and the observations CIT (A) in the impugned order are unsubstantiated. Appeal of the assessee is allowed.
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