TMI Blog2018 (10) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... ahar much prior to 2012-13 has become CVPL and is the assessee or representing the interest of Sadabahar, the assessee. The word ‘may’ used in Section 263 should be presumed to be shall or otherwise interpreting the word “may” as not mandatory, orders can be passed even without affording an opportunity to the assessee of being heard while the Commissioner exercises his jurisdiction under Section 263 of the Income tax Act, 1961 thereby violating the principles of natural justice. As the order and the two notices under challenge are set aside, all consequential steps taken subsequent to the order dated 14th January, 2013 or in pursuance thereof are also set aside. The department should not also emphasise or rely upon the letter written by CVPL on 12th March, 2014. This will, however, not prevent the respondent no. 2 from proceeding under Section 263 of the Income Tax Act, 1961 afresh against the petitioner no. 1 for the Assessment Year 2007-2008. The Department shall serve a fresh notice upon the petitioner no. 1 and proceed to fix a hearing date in exercise of his jurisdiction under Section 263. - decided in favour of assessee - W.P. 9104 (W) of 2014 - - - Dated:- 11-10-2018 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmit that it was, therefore, incumbent upon the respondent no. 2 to serve a notice to CVPL and after affording CVPL an opportunity of hearing should have passed the order dated 14th January, 2013. Having not done so, the said order should be set aside and a fresh order should be passed after hearing CVPL. 3) The advocate for the petitioner then submit that the Commissioner of Income Tax is competent under Section 263 of the Income Tax Act 1961 to re-assess the order passed by the Assessment Officer but after giving the assessee an opportunity of being heard. Any attempted service on Sadabahar after it had came to be known as CVPL cannot be held to be a proper and valid service and the Court should set aside such order directing rehearing of the matter after giving CVPL an opportunity of hearing. 4) The petitioners relied upon the Certificate of Incorporation issued by the Government of India, Ministry of Corporate Affairs, Registrar of Companies, West Bengal dated 27th October, 2010 to show the change in name of Sadabahar to CVPL was also known to the concerned ministry and two un-reported judgments of this Court passed respectively on 10th March, 2015 and 1st December, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns enumerated in the Code of Civil Procedure, 1908. Order 5 Rule 17 of the Code of Civil Procedure,1908 provides for the procedure when the defendant refuses to accept service or cannot be found. In the instant case, the notice issued by the department was returned with the endorsement not known , which gives rise to a presumption that the assessee cannot be found. In such circumstances, in view of the procedure laid down under Order 5 Rule 17 of the Code of Civil Procedure, 1908, it was open to the department to affix a copy of the notice on the outer door or some other conspicuous part of the house in which the assessee ordinarily carries on business. The department as stated hereinabove, had affixed a copy of the notice at the office premises of Sadabahar and, as such, it cannot be said that service on Sadabahar had not been attempted to be made or made. At the same time, one should keep in mind that, much prior to 2013 Sadabahar had came to be known as CVPL and income tax returns since the Assessment Year 2011-2012 has been filed by CVPL using the same PAN that of Sadabahar. Moreover, the Income Tax Department itself had issued PAN Card to CVPL with the same PAN that of Sadaba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner dated 14th January, 2013 and have approached this Court sometimes in the month of March, 2014 after making correspondences with the respondent no. 2 and, as such, have approached this Court without any delay. v) The said two notices, however, are addressed to Sadabahar at P-41 Princep Street, 6th Floor, Kolkata-700072. It is not clear how these two notices were received by the petitioners, though addressed to Sadabahar at its last known address. However, CVPL in reply to the said notice dated 14th February, 2014 by its letter dated 21st February, 2014 requested the respondent no. 1 to supply a copy of the order under Section 263 specifically mentioning therein that the name of Sadabahar has been changed to CVPL, and that the registered office of CVPL is situate at 12-B Cossipore Road, Kolkata-700002. This letter has been received by the respondent no. 1 on 26th February, 2014 as will appear from the stamp affixed thereon the photocopy whereof is annexed to the writ petition. Even thereafter, the notice dated 28th February, 2014 has been issued by the respondent no. 1 to Sadabahar at P-41 Princep Street, 6th Floor, Kolkata- 700072 instead of CVPL. This goes on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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