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TMI Blog2019 (10) TMI 1550X X X X Extracts X X X X X X X X Extracts X X X X ..... cted to appear before the ld. Pr. CIT within 30 days of receipt of the order - Appeal of the assessee is allowed for statistical purposes. - I.T.A. No. 1518/Kol/2015 - - - Dated:- 1-10-2019 - SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SRI S.S. GODARA, JUDICIAL MEMBER For the Appellant : Shri Vikash Surana, FCA For the Respondent : Dr. P.K. Srihari, CIT, Sr. D/R ORDER Per J. Sudhakar Reddy, AM :- This appeal filed by the assessee is directed against the order of the Learned Commissioner of Income Tax, Kolkata - III (hereinafter the ld. CIT), dt. 28/03/2013, passed u/s 263 of the Income Tax Act, 1961 (hereinafter the Act ), relating to Assessment Year 2009-10. 2. The assessee filed its return of income on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of CIT vs. Amitabh Bachchan reported in [2016] 384 ITR 200 (SC) held that Section 263 of the Act, does not contemplate the issue of show cause notice and all that the Section requires is, granting of an opportunity of hearing to the assessee. Thus, he submits that failure to give an opportunity was held as one which would render the revisional order legally fragile, not on the ground of lack of jurisdiction but on the ground of violation of principles of natural justice. 4.2. The ld. Counsel for the assessee filed a copy of Form No. 18 filed before the Registrar of Companies (ROC), quoted on 29/12/2010 to demonstrate that the change in address was intimated to the ROC. Copies of the return of income for the Assessment Year 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03/2012 4. Kamalalaya Centre, Room No. 417, 4th Floor, 156A, Lenin Sarani, Kolkata 700 013 15-07-2014 onwards Yes Form INC 22 Dated 26-07-2014 6.1. From the above it can be seen that the assessee company has been changing address since 13/12/2010 and thereafter the assessee informed to the Registrar of Companies (RoC) by filing Form No. 18. No letter has been filed by the assessee to intimate the chang of address in question to the Income Tax authorities. For the Assessment Year 2009-10, the address mentioned in the return of income was 5/4, Clive Row, 4th Floor, Room No. 109, P.S. Hare Street Kolkata 700 001. It is claimed by the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e revenue cannot be blamed. The ld. CIT has in his order passed u/s 263 of the Act on 28/03/2013, stated as follows:- However, the notice was returned by the Postal Authorities with the remark Not Found . Subsequently, an inspector was deputed to serve the notice. He also could not locate the assessee at the given address and could not contact any of the Directors/Representatives/employees of the assessee company. In view of this, the notice had to be served by affixture at the given address. There has been no compliance and under the circumstances, I have not option but to pass the order ex-parte. 6.2. From the above, it is clear that notice u/s 263 of the Act has been served on the assessee by affixation. On the issue as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. Thus, there is an outer limit in the statute under Section 263 which, in the present 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. 7.2. We are unable to apply the propositions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant before the order under section 263 was passed. Care was not taken to find out from the records that the company since has converted into a limited liability partnership on January 9, 2011 was thus not in existence and so notice of hearing should have been given to Room No. 24, 3rd floor, P-103, Princep Street, which was the address of the LLP. Care was also not taken to even ascertain the last known address of the company which were available in the records. The notices to the company were not sent to or served at the last known address of the company viz. Room No. 24 , 3rd Floor, P-103, Princep Street, Kolkata-700072, from where the LLP was also functioning from January 9, 2011. Thus, we find that the appellant had no notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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