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TMI Blog2019 (2) TMI 2073X X X X Extracts X X X X X X X X Extracts X X X X ..... ince street; And we note that the first tear off acknowledgement is blank except seal and dated 20.03.2013 with no name or signature or address and second tear off is only at the most evidences collection of the impugned order after passing of the said order and not before that; and likewise Power of Attorney to Chartered Accountants were after the passing of the impugned order and thus and both the tear off acknowledgement slips and Power of Attorney to Chartered Accountants shown to us from the file of Pr. CIT in no way advance the case of the revenue to show that notice of the proceedings u/s. 263 of the Act is conveyed to the successor-in- interest the LLP at the proper address of the dissolved company/LLP at prince street. Thus no notice of the sec. 263 proceeding has been brought to the knowledge of the assessee [dissolved company] at its last proper address of the dissolved company at prince street thereby it could have been said that successor-in-interest LLP had knowledge about the proceedings going on before the ld Pr CIT u/s 263 of the Act or before the impugned order was passed by the Ld. Pr. CIT u/s. 263. Despite department knowing the last proper address of diss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not received any notice about the proceedings u/s. 263 of the Act because of which it was not aware of the revisional proceeding itself so, it did not get an opportunity of hearing before the Ld. Pr. CIT before passing the impugned order. So the assessee in the first round of appeal before the Tribunal had raised a ground against the impugned order of Pr. CIT u/s. 263 stating that it was passed without affording an opportunity to assessee LLP is bad in law, which ground was not adjudicated by the Tribunal. And as stated earlier, the Tribunal dismissed the appeal of assessee along with other tagged appeals of other assessee's. Against the dismissal of it's appeal by the Tribunal, the assessee preferred an appeal before the Hon'ble High Court, wherein the Hon'ble High Court was pleased to set aside the order of the Tribunal passed in the first round dated 10.08.2015 against this assessee and remanded the appeal back to the Tribunal to decide specifically as to whether there was a violation of natural justice against the assessee LLP before passing of the impugned order u/s. 263 by the Pr. CIT. Therefore, the assessee is now before us. 3. We have perused the mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh a previous notice under Section 263 of the Act is not a sine qua non for the jurisdiction to be exercised thereunder by the commissioner, the provision mandates an opportunity of hearing to be afforded to the assessee. In the present case, upon the assessee company being dissolved, such opportunity of hearing ought to have been given to the present appellant, particularly, since it appears that the present appellant kept the authorities informed of the company being dissolved upon the appellant limited liability partnership taking over its business, assets and liabilities as a going concern. It is evident from a letter dated May 6, 2013, issued by the appellant herein to the relevant commissioner that the appellant did not have any prior knowledge of the commissioner reopening the matter or intending to pass any order under Section 263 of the Act. While it appears that the order of the commissioner referred to a notice dated March 18, 2013 and such notice remaining unattended to and a further notice informing the assessee of a fresh hearing on March 18, 2013, it is not clear from the commissioner's order under Section 263 of the Act as to whether the present appellant was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er has remanded to us a limited question as to whether there is violation of the principles of natural justice qua the LLP which is the Successor-in-Interest of the M/s. Brolly Dealcom Pvt. Ltd. before the Ld. Pr. CIT passed the order u/s. 263 of the Act. In other words, whether the LLP was served with a notice of sec. 263 proceedings or made aware of the said proceedings or is it feigning ignorance of the said proceedings before the Pr. CIT. This is what we have to find out as directed by the Hon'ble High Court. In order to adjudicate this issue let us first look at the addresses of Private Limited Company and that of the LLP. For that we have gone through the record produced by the Ld. CIT, DR of the Commissioner's file in respect of the section 263 order. We have perused the same. We note that the Private Limited Company prior to its conversion was in the name and style of M/s. Brolly Dealcom Pvt. Ltd. and the address is shown in the impugned 263 order of the Ld. Pr. CIT is 16, G. C. Avenue, Kolkata-700 013. Whereas, in respect to the address of LLP, the Ld. AR drew our attention to page 7 of the new paper book as well as to the page 1 of the old paper book which is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice issued by Ld. Pr. CIT before passing the impugned order has addressed it to another address also i.e. 9/1, R. B. C. Road, Kolkata-700028. 7. However, the Ld. CIT, DR justifying the action of ld CIT, and contending that assessee was served with the notice, drew our attention to the Show Cause Notice of Ld. Pr. CIT and contended that it was delivered to M/s. Brolly Dealcom Pvt. Ltd. on 20.03.2013. According to him, it is evident from a perusal of the tear off acknowledgment slip available in the file wherein the date and seal of M/s. Brolly Dealcom Pvt. Ltd. is seen to have been affixed and written on the tear off acknowledgment slip (hereinafter the first tear off slip). Further, the Ld. CIT, DR drew our attention to the Power of Attorney signed by the Director of M/s. Brolly Dealcom Pvt. Ltd. authorizing G. K. Tulsiyan Co., Chartered Accountant which is also seen placed in the folder of Ld. Pr. CIT, which facts, according to Ld. CIT, DR, goes on to show that the company was served notice and pursuant to the same, the company had appointed the aforesaid Chartered Accountants. And also he drew our attention to another 'tear off slip' wherein the seal of Private Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the tear off acknowledgment slip (wherein date of 20.03.2013 which we term it as 'First tear off acknowledgement') shown by the Ld. CIT, DR, we note that though it was a tear off Acknowledgment slip there is neither any [g.i.r] number, name nor address of Assessee (no name of private ltd company or LLP) is written on it; further, there is neither any information as to who received it, nor on what date it was served; moreover, there is no mention about what was served like notice, order etc. So, the tear of acknowledgment slip is found blank except a seal of Brolly Dealcom Pvt. Ltd. (wherein we note that in the seal except the words B,D,P,L all are small letters) and a scribbling of date written as 20.03.2013, which does not in any way gives the impression that the Show Cause Notice which is addressed to company's earlier address at G.C. Avenue dated 18.03.2013 have been served upon the LLP at its address at Princep Street, it is only a blank tear of acknowledgment slip with a seal and date, which doesn't even convey that the staff of dissolved private limited company received the SCN on 20.03.2013. Moreover, the erstwhile director of company on sworn af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oto copy. In the original office copy and photocopy we note it is addressed to the Private Limited Company at G. C. Avenue as well as R.B.C. Road. We note that the Princep Street address is not mentioned below the name/caption of the company. However, a careful perusal of the photocopy of the Show Cause Notice, at the bottom of the Show Cause Notice, we note a scribbling which is illegible hand written which portion reads P- 103, Princep Street, Kol-72 and a signature with an endorsement which is legible Received dated 26.03.2013, Mobile No. 9078152601 and staff. For better understanding and appreciation the photocopy of the Show Cause Notice with the aforesaid endorsement which is the trump card of the Revenue to suggest that notice has been served at the Princep Street. 12. Assailing the scribbling on aforesaid photocopy of Show Cause Notice, the Ld. AR wondered and pointed out the infirmities on it to show that it was an afterthought action to wriggle out of the conundrum the department has fallen into, for not being vigilant and to escape from its sheer negligence's has ventured to do such things to create at least a doubt that the notice was served in Princep Street ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in the affidavit that the author of the aforesaid acknowledgement could not be identified by him. It was brought to our knowledge that several attempts were made to dial the mobile phone number mentioned in the endorsement, but the voice message they got every time was that the phone is switched off. Shri Sushanta Kumar Parida, Ex-Director has stated that neither the notice dated March 18, 2013 nor the notice dated March 25/26, 2013 was served upon the company and the order dated March 28, 2013 under section 263 was passed without affording any opportunity. It was pointed out to us that the revenue has not controverted the statements made in the said two affidavits which have been filed before us. Moreover, we note that the Revenue is harping heavily on the two Acknowledgement tear off slip to contend that the notice/order has been served upon the company at G. C. Avenue on 20.03.2013, then the question arises as to where is the tear off slip of the department on which the receipt of notice could have been endorsed with signature of the receiver at princep street along with seal of LLP, rather than scribbling incomplete address and signature of an anonymous person, which does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d at Room No. 24, 3rd Floor, P-103, Princep Street, Kolkata-700072 which is the registered office reflected in the Certificate of Registration of LLP. Shri Sushanta Kumar Parida in his affidavit has stated that after shifting, no person at the old address was authorised to receive any communication addressed to the company. Explaining how the erstwhile director of company has collected the impugned order on 31.03.2013, Shri Udaya Kumar Senapati [partner of C.A] in his affidavit has stated that on or about March 30/31, 2013, a telephone call was received at the office of G.K. Tulsyan Co. from the Kolkata Ward 5(4) of the Income Tax Department under the jurisdiction of the Commissioner of Income Tax, Kolkata II that a representative of the company should attend the Income Tax Department along with the company's seal to collect copy of the order under section 263. And pursuant to that direction, he accordingly informed Shri Sushanta Kumar Parida. And Shri Sushanta Kumar Parida in his affidavit has corroborated this fact and that upon being informed by Shri Udaya Kumar Senapati, he attended the Income Tax Department and informed the concerned officer that the company was no longe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s executed after receipt of the order under section 263 for the purpose of making enquiries in the office of the Commissioner is necessarily is to be drawn as correct in the facts and circumstances analysed supra and the department has failed to controvert this facts discussed above. 15. Having regard to the aforesaid facts, there is nothing to show that the communication dated March 25/26, 2013 was sent to or delivered or handed over to anybody at Room No. 24, 3rd Floor, P-103, Princep Street, Kolkata-700072. The person who affixed his signature acknowledging receipt of the communication dated March 25/26, 2013 is unidentified and there is nothing to show that the acknowledgement receipt scribbled in respect of the communication dated March 25/26, 2013 is of any person/authorised person of the company or LLP. 16. As per section 282 of the Act, notice may be served by post, by approved courier service or in such manner as provided under the Code of Civil Procedure, 1908 for the purpose of service of summons. The other provisions of section 282 regarding service in the form of electronic record or by any other means specified in the rules is not material in the instant case. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 of the proceedings under section 263. In such circumstances, the order dated March 28, 2013 passed under section is bad in law. 18. The following case laws were brought to our notice : (i) Hon'ble Supreme Court of India in case of Sona Builders vs Union of India Ors. In 251 ITR 197 Purchase of immovable property-Opportunity of being heard- Fair market value- Notice of hearing gave only five days to the parties to respond which included the weekend-Same inadequate-Notice alleged that the apparent consideration of the transaction was low as compared to sale instances mentioned therein-No copy of any document relating to the sale instance was furnished by the Appropriate Authority to the appellant-transferee along with the notice or at any time whatsoever-There was gross brea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Officer issued notice to assessee under section 148 - Assessee did not appear in proceedings - Assessing Officer considered service to be sufficient are thereafter made various additions - Tribunal noted that no ice was sent on wrong address and person alleged to be a employee of assessee was not authorized to receive notice - Tribunal thus opined that presumption of service of notice under section 292BB would not be attracted - Accordingly, additions made in reassessment proceedings were deleted - Whether finding recorded by Tribunal being a finding of fact, no substantial question of law arose therefrom - Held, yes [Para 7] [In favour of assessee] (v) Hon'ble High Court of Madras in the case of Green Power Realtors Pvt. Ltd. vs DCIT 216 Taxman 169 Section 143 of the Income-tax Act, 1961 - Assessment - Issue of notice [Time of issue of notice] - Assessment year 2005-06 - Whether, revenue authority has to afford an opportunity of hearing to assessee in accordance with law, before proceeding to pass an assessment order - Held, yes - Whether, therefore, where notice under section 143(2) was dispatched to assessee only after date fixed for hearing, there was denial of reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd valid service of notice u/s 148 on assessee is mandatory requirement; violation thereof will result in quashing of the reassessment proceedings-Assessee had demonstrated that notice was issued sent at an address different than one mentioned in his return of income-Department also admits that notice was served not on assessee but on one V who according to AO was a responsible person working for group entities of assessees family and this amounts to a proper service on assessee- Assessee's contention that V was neither his employee nor his authorized agent, remains uncontroverted-Department failed to demonstrate that notice u/s. 148 was served on assessee for A.Y. 2001-02-ln absence of a valid service of notice u/s. 148 on assessee reassessment proceedings for AY 2001-02 quashed-Assessee's appeal allowed (ix) The Jodhpur Bench of Tribunal in the case of Banwarilal Bhartiya vs ITO in 4 SOT 311 Section 144 read with section 143(2), of the Income-tax Act, 1961 - Best judgment assessment - Whether assessment made under section 144 without proper service of notices under sections 142(1) and 143(2) in violation of principles of natural justice cannot be said to be valid ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013 and the impugned order of Ld. CIT u/s. 263 was passed on 28.03.2013 not in the address of the present LLP. The scribbling on the Photostat with the incomplete address, wherein the Room No. 24, 3rd floor was not mentioned in the address of Princep Street and the fact that there was no tear off acknowledgment slip for the delivery if any of the notice at Princep address cumulatively goes on to show that no notice was delivered to the proper address at prince street; And we note that the first tear off acknowledgement is blank except seal and dated 20.03.2013 with no name or signature or address and second tear off is only at the most evidences collection of the impugned order after passing of the said order and not before that; and likewise Power of Attorney to Chartered Accountants were after the passing of the impugned order and thus and both the tear off acknowledgement slips and Power of Attorney to Chartered Accountants shown to us from the file of Pr. CIT in no way advance the case of the revenue to show that notice of the proceedings u/s. 263 of the Act is conveyed to the successor-in- interest the LLP at the proper address of the dissolved company/LLP at prince street. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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