TMI Blog2017 (9) TMI 1041X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case, is 31st March, 2013. Since, no useful purpose will be served in giving an opportunity to the Appellant of being heard at this stage, this Court answers question No.1 in the negative i.e. in favour of the Assessee and against the Revenue. - ITA 853/2015 - - - Dated:- 14-9-2017 - S. MURALIDHAR PRATHIBA M. SINGH JJ. Appellant Through: Mr. C.S. Aggarwal, Senior Advocate with Mr. Prakash Kumar and Ms. Pushpa Sharma, Advocates. Respondent Through: Mr. Ashok Manchanda, Senior Standing Counsel with Mr. Raghvendra Singh and Mr. Anand K. Chaudhari, Advocates. O R D E R Prathiba M. Singh J., 1. This is an appeal under Section 260 A of the Income Tax Act, 1961 (hereinafter referred to as the Act ) impugning order dated 30th July, 2015 passed by the Income Tax Appellate Tribunal ( ITAT ) Kolkata, Bench-B, Kolkata in ITA No. 1905/Kol/2013 for the Assessment Year ( AY ) 2008- 09. 2. On 17th December, 2015, this Court had rejected the preliminary objection raised by the Respondent as regards the maintainability of the appeal on the ground of lack of territorial jurisdiction. The appeal was admitted and the following two questions of law were framed: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh assessment order after conducting adequate inquiries and verification. 6. Thereafter, the AO passed a fresh assessment order on 29th March, 2014 for AY 2008-09 under Sections 144/263/143 (3)/147 of the Act, assessing the Appellant and making an addition of ₹ 4,39,70,000/- as unexplained cash credit under Section 68 of the Act. On 3rd September, 2015, the CIT (A)-2 Kolkata allowed the appeal of the Assessee and held that the Appellant was able to establish the identity and authenticity of the share applicants as also the genuineness of the transaction and deleted the addition of ₹ 4,39,70,000/- made under Section 68 of the Act. This order of the AO dated 29th March 2014 is not subject-matter of this Appeal. 7. Independently of the proceedings before the AO, the Assessee challenged the order dated 30th March 2013 passed by the CIT before the ITAT. The ITAT dismissed the said appeal on 30th July, 2015, thereby upholding the notice under Section 263 and the order passed thereon. Submissions of the Appellant 8. Mr. C.S. Aggarwal, learned Senior Counsel appearing for the Appellant submits that the notice under Section 263 of the Act was never issued to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to point out to the court that the Revenue had in fact issued the notice to the correct address i.e. the Delhi address of the Appellant. He points to the original file from the ITO, produced in Court, to demonstrate that the notice dated 18th March, 2013 was initially issued to the Appellant at the Raja Woodmunt Street address. However, when the notice server went to deliver the same, he was informed of the correct address at New Delhi. Accordingly, the same notice of 18th March, 2013 was re-posted to the Delhi address of the Appellant on 20th March, 2013. Mr. Manchanda produced the original envelope as also the acknowledgment slip to show the handwritten noting of the notice server of the new address on the acknowledgement slip and the re-posting of the same to the Delhi address of the Appellant. He submits that even the notice to the Delhi address was returned to the ITO, Kolkata who then proceeded ex-parte and passed the impugned order dated 30th March, 2013. According to Mr. Manchanda, the ITO is left with no option under such circumstances as he has complied with the requirements under Section 263. In fact, according to Mr. Manchanda, no notice needs to be issued under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Assessee, must be afforded to him by the Commissioner of Income-tax prior to the finalisation of the decision . (emphasis added) 15. Thus, what is required to be given is a full opportunity to the Assessee to controvert the contents of the notice under Section 263 of the Act and explain the circumstances as may be considered to be relevant by the Assessee. 16. The short question that, therefore, arises is as to - whether such an opportunity was afforded to the Appellant in the present case? 17. A perusal of the records reveals that the ITO was well aware of the various addresses of the Appellant including the latest address at New Delhi at the time when the notice under Section 263 of the Act dated 18th March, 2013 was to be issued. The Appellant had filed its return for AY 2012-13 on 25th September, 2012 i.e. a full five months prior to the issuance of the notice under Section 263 of the Act. Thus, the first error committed by the ITO was to issue the notice under Section 263 on 18th March 2013, to the address of the Appellant which was changed as far back in AY 2010-11. There was no justification whatsoever to issue a notice of hearing under Section 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eive the notice being posted on 20th March, 2013, and attend the hearing on 22nd March, 2013. This Court has no doubt that this does not constitute full opportunity as required by the Supreme Court in Amitabh Bachchan (supra) in respect of a notice under Section 263 of the Act. 22. It, thus, appears that the notice having been given initially at the wrong address and thereafter posted to the correct address just two days prior to the said hearing and the said notice also having been returned unserved due to the reasons which are not decipherable, the requirement under Section 263 (1) of the Act is not satisfied. In Chandra Agencies (supra) this Court has gone to the extent of holding that refusal by the Assessee s son to receive the notice under Section 148 of the Act does not constitute good service. 23. This Court has also examined the question as to whether an opportunity of hearing could now be afforded to the Appellant. However, Section 263 (2) of the Act is a clear bar for any order being passed pursuant to a notice under Section 263 of the Act, after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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