TMI Blog2016 (1) TMI 1342X X X X Extracts X X X X X X X X Extracts X X X X ..... present case is not valid - Order u/s 263 of the Act is accordingly quashed and the appeal of the assessee is allowed. Appeal allowed - decided in favor of assessee. - ITA No.706/Kol/2013 Assessment Year: 2008-09 - - - Dated:- 15-1-2016 - Shri N.V.Vasudevan, JM Shri Waseem Ahmed, AM For the Appellant: Shri V.N.Purohit, FCA For the Respondent: Shri Sandeep Chaube, CIT(DR) Date of Pronouncement: 15-01-2016. ORDER Per Shri N.V.Vasudevan, JM This is an appeal by the assessee directed against the order dated 20.03.2013 of CIT- XXI, Kolkata passed u/s 263 of the Act relating to A.Y.2008-09. 2. The Assessee is a partnership firm. It is engaged in business of transportation and financing. For A.Y.2008-09 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he C.I.T. ultimately passed order u/s 263 of the Act holding that the AO failed to examine the aforesaid aspects and set aside the order of AO and gave the following directions to the AO :- 8. In the interest of justice, the above issues are set aside to the AO who is directed to examine the matter as mentioned above and pass the order in accordance with provisions of the Income Tax Act, after giving due opportunity to the assessee. 4. Aggrieved by the order of C.I.T. assessee has preferred the present appeal for the Tribunal raising the following grounds :- 1. That the order purported to have passed u/s 263 of the I.T .Act, 1961 is bad in law and also on the facts and circumstances of the case. 2. That without prejudice to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tish Kumar Kashri vs. ITO 104 ITD 382 (Patna) (c) Reliance is also placed on co-ordinate bench s order (Bardhaman Co-op. Milk Products Union Ltd. Vs. C.I.T.Burdwan) in ITA No.310-311/Kol/2009 of A Bench, Kolkata (copy enclosed). Above two cases of Allahabad H.C. and ITAT Patna have been discussed in details in this order of A Bench, Kolkata holding the assumption of jurisdiction by Ld.CIT Burdwan is not valid. 6. The learned DR relied on the order of the C.I.T.. 7. We have considered the rival submissions. A perusal of the records shows that the show cause notice u/s 263 of the Act dated 26.02.2013 was signed by A.C.I.T.(HQ)-XXI, Kolkata and not by C.I.T. The question regarding validity of the order passed u/s 263 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assumed is defective and the order u/s 263 of the Act, is liable to be quashed on this ground itself. In this regard, Ld. counsel for the assessee referred to the decision of Hon ble Allahabad High Court in the course of cit v. Rajesh Kumar Pandey (2012) 25 taxmann.com 242 (All.). The Ld. counsel for the assessee further referred to the decision of the Tribunal in the case of Satish Kumar Kashri v. ITO 104 ITD 382 (Pat). 6. Ld. DR on the other hand submitted that above is not the material defect and he submitted that there is no reason to set aside the order u/s. 263 of the Act, on this account. 7. We have carefully considered the submissions and perused the record. We find that Section 263(1) of the Act provides as under:- The C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, there is a defective service of notice, it provides that if the assessee has cooperated, it will not be open for him to raise the plea, whereas in the instant case, it is not the case of the service of notice, but the initial issuance of notice, which has not been signed by the competent authority as a finding has been recorded by the Tribunal that the notice has been issued under the signature of Income-tax (technical), whereas in view of the provisions of powers under Section 263(1), it is only the Commissioner of Income-tax to issue notice. It is also relevant to add that pleas can be raised only out of the judgment passed by the Tribunal or other authorities, but the plea, which was not raised at any stage, cannot be raised for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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