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2017 (5) TMI 1210 - AT - Income TaxRevision u/s 263 - ‘opportunity of being heard’ has not been satisfied, as no notice was served on assessee - denial of natural justice - Held that:- The first condition of ‘opportunity of being heard’ has not been satisfied, as no notice was served on assessee, leave alone giving sufficient opportunity. Coming to the issue of non-service of notice, it is to be noted that the Ld.CIT did not serve any notice on assessee. As explained by the Ld.CIT-DR, the notice was sent through service by process server to the AO who reported that assessee was not living in the given address and his whereabouts are not available and the address which was given was demolished. In these circumstances, without taking recourse to any other mode of service of notice, CIT concluded that the proceedings are to be completed as they were time barring. As can be seen from para 6, the notice dt. 14-03-2011 was issued but not served but an order was passed on 28-03-2014. At any rate, reckoned from the date of issuing the notice, even the mandatory two weeks’ time was also not provided by the CIT. Ld.CIT could have sent the notice by post to make ‘evidence on record’ that a proper notice was at-least issued, if not served, on assessee. No notice was sent by post. Having come to know that assessee was not living in the given address, no attempt was made to locate assessee, as was subsequently found out in the course of recovery proceedings. In the present case, neither there was any issuance of a show cause notice by way of post nor was there any service by affixture. There is no substituted service also as admitted in this case. Apart from not giving an opportunity to assessee, Ld.CIT also did not verify the record properly. The proceedings u/s. 153C were initiated as the department has seized certain documents in search of M/s. MBS Jewellers Pvt. Ltd. Obviously, AO could not have completed the assessment, without examining these documents, as the very basis for issuing of notices u/s. 153C for the impugned year was the said sale deed copies. Moreover, AO issued a show cause notice, as discussed in the arguments of Ld. Counsel and assessee had given a detailed reply. It was further submitted that assessee has given GPA to one Shri Koteswara Rao and subsequently cancelled the same within two years. The said GPA copies were enclosed to letter by assessee in the course of assessment proceedings itself. The copies of sale documents obviously pertain to the period after GPA was cancelled. Therefore, as presumed by assessee and may be in the eye of law, they are not valid documents. Not only that assessee has also clearly stated that he has not sold any property and the statement of affairs do indicate that the impugned property is in assessee’s possession. Thus, if the CIT has examined the record correctly, he would not have come to a conclusion that there is no verification of the issue. Opportunity of being heard is little more than serving a notice on assessee. It is not an empty formality. Without giving a proper opportunity to assessee, revision proceedings u/s. 263 cannot be finalized as the provisions of Section 263 mandates that the CIT may pass such orders after giving an opportunity of being heard. Since the mandatory requirement of opportunity of being heard has not been provided to assessee, the order passed by CIT is void ab-initio. - Decided in favour of assessee.
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