TMI Blog2023 (8) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was considered. The said submission, on the face of it, has no legs to stand on, as the instant proceedings and the impugned order have been passed pursuant to the notice u/s 263. Once the respondent authority himself records that no response has been filed in pursuance of the notice u/s 263 of the Income Tax Act dated 27.03.2022, a contrary finding, as recorded in paragraph no. 5 of the impugned order, cannot be accepted in the eyes of law. Notice u/s 263 was prepared and uploaded/sent on 28.03.2022 and the same was received on the date fixed, i.e., 29.03.2022 and the impugned order dated 31.03.2022 has been passed in gross violation of the principles of natural justice. There is an apparent violation of the principles of natural justice, as no opportunity was given to the petitioner for defending or presenting its case, the impugned order cannot be sustained in the eyes of law in view of the law laid down by the Apex Court in Whirlpool Corporation v. Registrar of Trade Marks Mumbai [ 1998 (10) TMI 510 - SUPREME COURT] . The impugned order does not refer any finding as enumerated in Explanation II of section 263 of the Income Tax Act to suggest that the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee, has passed the impugned order. He further submits that no inquiry as contemplated under section 263 of the Income Tax Act was conducted by the respondent no. 1 before passing the impugned order and the inquiry, if any, was conducted behind the back of the petitioner without any opportunity. 5. He further submits that the Department maintains online order sheet. The signature of the Advocate shown in the manual order order sheet dated 30.03.2022 (Annexure No. CA-8) is entirely different from the signature in the adjournment application (Annexure No. 5 to the writ petition), on the basis of which the Department is claiming that the petitioner's Advocate appeared on 30.03.2022. 6. He further submits that in 2nd proviso to section 263 of the Income Tax Act, certain conditions have been enumerated for passing an order under section 263 of the Income Tax Act, but none of such conditions has been fulfilled before passing the impugned order. In the impugned order, no finding has been recorded as to how the original order is prejudicial to the interest of the Revenue. 7. He further submits that the notice under section 263 of the Income Tax Act was issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing the learned counsel for the parties, the Court has perused the record. 11. Admittedly, the notice under section 263 of the Income Tax Act dated 27.03.2022 was prepared and the same was got approved for uploading on the portal. The Office of the respondent sent the information to the petitioner on its portal on 28.03.2022. The petitioner came to know about the notice on 29.03.2022 in the morning and immediately thereafter, moved an adjournment application on 29.03.2022 itself. On the adjournment application, e-proceeding response acknowledgment no. 480299081300322 was generated (Annexure No. 6 to the writ petition). The fact that the adjournment was moved has not been denied by the respondent. The order sheet of the proceedings under section 263 of the Income Tax Act have been filed. The copy of the computer generated order sheet has been brought on record as Annexure No. CA 2 to the counter affidavit. On perusal of the same shows that no order was passed on 29.03.2022 either allowing the adjournment application or rejecting the same or fixing any other date. The order sheet only shows that an adjournment application was moved on 30.03.2022. Further, the order she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Assessee, facts of the case, documentary evidences produced, past assessment orders and material information available, the reply of the Assessee has been found to be grossly unsatisfactory, not responding to the queries raised in the notice issued. 15. Perusal of paragraph no. 5 of the impugned order shows that the assessee has submitted its reply after due examination of the same and material on record, the impugned order has been passed. 16. From the perusal of the aforesaid paragraph nos. 4 5 of the impugned order, it clearly reveals that the same are self-contradictory. The respondent authority is trying to blow hot cold at the same time. Whereas, in paragraph no. 4 of the impugned order, it has been mentioned that no reply has been submitted by the petitioner, to the contrary, in paragraph no. 5 of the impugned order, it has been mentioned that the assessee has submitted its reply. Neither in the impugned order, nor in the counter affidavit filed before this Court, any reference of the reply submitted by the assessee, as alleged in the paragraph no. 5 of the impugned, has been made. 17. On the pointed query to the counsel for the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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