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TMI Blog2018 (8) TMI 1371X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the impugned notice and the order are contrary to the provisions of Sections 150 and Section 153(explanation 3, as it stood then). 3. The facts briefly are that accounts of one M/s. Acorus Unitech Wireless Private Limited were assessed in respect of returns for Assessment Year 2009-2010, after which, matter was carried in appeal. 4. The Commissioner of Income Tax, by the order dated 01.03.2017, formed opinion that the additions made, which were brought to tax on account of Section 2(24)(iv) were to be assessed in the hands of the present assessees/petitioners , i.e. Ramesh Chandra and Sanjay Chandra. The relevant findings of the CIT (A) are as follows:- "11. However, undersigned is of the view that this entire exercise has been do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as in the multiple sub-grounds of appeal raised, the appellant has only challenged the addition u/s 28(iv) and the market value of shares transferred. Both these issues have been decided against the appellant. Ground no. 1 is of general nature and Ground no. 4 is of consequential nature and these two grounds do not require separate adjudication. The ground no. 3 is regarding the principles of natural justice. The same is dismissed as the assessment order was passed after giving an opportunity of hearing to the appellant. It is further clarified that this order shall not prejudice the powers of AO u/s 154 regarding quantum of addition if the records reflect that MIs Telenor Asia Pte. Ltd had invested in the shares at a premium of Rs. 169 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. It is also emphasized that besides the appeals of M/s. Acorus Unitech Private Limited, the main assessee, in whose case the CIT(A) recorded adverse findings against the petitioner, is pending before the Income Tax Appellate Tribunal (ITAT). 8. Counsel for the Revenue stated that in these circumstances, this Court should resist from causing its discretionary power having jurisdiction under Article 226 of the Constitution of India. 9. It is not disputed by the parties that the extended period of limitation as it were, for issuing re-assessment notices under Section 147/148 of the Act, is spelt out in Section 149, i.e. six years provided the other jurisdictional conditions are fulfilled. There is, however, one exception to this absolute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment, may be made at any time before the expiry of nine months from the end of the financial year in which the order under Section 254 is received by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner or, as the case may be, the order under Section 263 or Section 264 is passed by the Principal Commissioner or Commissioner : Provided that where the order under Section 254 is received by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner or, as the case may be, the order under Section 263 or Section 264 is passed by the Principal Commissioner or Commissioner on or after the 1st day of April, 2019, the provisions of this sub-section shall have effect, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has been observed that there was no need to have afforded an opportunity to the petitioner. Even in the counter affidavit, the revenue has taken the stand that it was not at all necessary for the Income Tax Appellate Tribunal to have allowed an opportunity of hearing to the petitioner because that was in respect of the assessment proceedings pertaining to the said society. 15. From the above, it is clear that no opportunity of hearing was given to the petitioner prior to the passing of the order dated 13.01.2010 by the Income Tax Appellate Tribunal, Hyderabad in the cases of the said society. As such, one essential ingredient of Explanation 3 was missing and, therefore, the deeming clause would not get triggered. That being the position, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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