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2023 (8) TMI 830 - ALLAHABAD HIGH COURTRevision u/s 263 - Denial of natural justice - assessee has not submitted any reply in response to the notice u/s 263 - HELD THAT:- The respondent – authority is trying to blow hot & cold at the same time. Whereas, in paragraph no. 4 of the impugned order, it has been mentioned that no reply has been submitted by the petitioner, to the contrary, in paragraph no. 5 of the impugned order, it has been mentioned that the assessee has submitted its reply. Neither in the impugned order, nor in the counter affidavit filed before this Court, any reference of the reply submitted by the assessee, as alleged in the paragraph no. 5 of the impugned, has been made. On the pointed query as to whether reply, as referred to in paragraph no. 5 of the impugned order, has been submitted, he categorically refers Annexure No. CA – 5 to the counter affidavit and submits that the reply has been submitted by the assessee in the proceedings u/s 142(1) which was considered. The said submission, on the face of it, has no legs to stand on, as the instant proceedings and the impugned order have been passed pursuant to the notice u/s 263. Once the respondent – authority himself records that no response has been filed in pursuance of the notice u/s 263 of the Income Tax Act dated 27.03.2022, a contrary finding, as recorded in paragraph no. 5 of the impugned order, cannot be accepted in the eyes of law. Notice u/s 263 was prepared and uploaded/sent on 28.03.2022 and the same was received on the date fixed, i.e., 29.03.2022 and the impugned order dated 31.03.2022 has been passed in gross violation of the principles of natural justice. There is an apparent violation of the principles of natural justice, as no opportunity was given to the petitioner for defending or presenting its case, the impugned order cannot be sustained in the eyes of law in view of the law laid down by the Apex Court in Whirlpool Corporation v. Registrar of Trade Marks Mumbai [1998 (10) TMI 510 - SUPREME COURT]. The impugned order does not refer any finding as enumerated in Explanation – II of section 263 of the Income Tax Act to suggest that the assessment order was prejudicial to the interest of the Revenue in view of Malabar Industrial Co. Ltd. [2000 (2) TMI 10 - SUPREME COURT] and therefore, on this count also, the impugned order cannot be sustained in the eyes of law. Decided in favour of assessee.
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