TECHNO TRACOM PVT. LTD.,KOLKATA vs. CIT-3, KOLKATA, KOLKATA

The assessee filed its return of income on 25/09/2009, declaring total income of Rs.766/-. The assessment was completed u/s 143(3) r.w.s. 147 of the Act on 28/03/2011, determining total income of the assessee at Rs.68,410/-. Thereafter the ld. CIT, passed an order u/s 263 of the Act, dt. 28/03/2013, wherein, he set aside the assessment order passed u/s 143(3)/147 of the Act on 28/03/2011, to the file of the Assessing Officer for fresh adjudication, in accordance with law. While doing so, he issued certain directions to the Assessing Officer, as to the manner in which ha to conduct enquiries in the fresh assessment proceedings.

Aggrieved the assessee is in appeal before us.

We have heard rival contentions. On careful c We have heard rival contentions. On careful consideration of the facts and onsideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities circumstances of the case, perusal of the papers on record, orders of the authorities circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, we hold as follows: below as well as case law cited, we hold as follows:- 6. The assessee company changed its address four times. The ld. Counsel for the The assessee company changed its address four times. The ld. Counsel for the The assessee company changed its address four times. The ld. Counsel for the assessee filed a chart giving the sequence in which the assessee company had changed ssee filed a chart giving the sequence in which the assessee company had changed ssee filed a chart giving the sequence in which the assessee company had changed 3 Assessment Year: 2009-10 Techno Tracom Private Limited the address of the registered office of the company and how it was intimated. The chart the address of the registered office of the company and how it was intimated. The chart the address of the registered office of the company and how it was intimated. The chart is extracted for ready reference: is extracted for ready reference:-

No letter has been filed by the assessee has been filed by the assessee to intimate the chang of address in question to the the chang of address in question to the Income Tax authorities. For the authorities. For the Assessment Year 2009-10, the address mentioned in the return of income was 5/4, 10, the address mentioned in the return of income was 5/4, 10, the address mentioned in the return of income was 5/4, Clive Row, 4th Floor, Room No. 109, P.S. Hare Street Kolkata Room No. 109, P.S. Hare Street Kolkata – 700 001. It is claimed by 700 001. It is claimed by the assessee that a search and seizure operation u/s 132 of the Act was conducted on the assessee that a search and seizure operation u/s 132 of the Act was conducted on the assessee that a search and seizure operation u/s 132 of the Act was conducted on the assessee on 08/02/2013. Notice u/s 153A of the Act, dt. 06/08/2014, was served on the assessee on 08/02/2013. Notice u/s 153A of the Act, dt. 06/08/2014, was served on the assessee on 08/02/2013. Notice u/s 153A of the Act, dt. 06/08/2014, was served on the registered office of the company at 156A, Lenin Sara the registered office of the company at 156A, Lenin Sarani, Kolkata – 700 013. From the 700 013. From the assessment order passed u/s 153A/143(3) of the Act on 23/03/2015, for the assessment order passed u/s 153A/143(3) of the Act on 23/03/2015, for the assessment order passed u/s 153A/143(3) of the Act on 23/03/2015, for the Assessment Year 2009-10, it is noted that the address of the assessee is stated as 10, it is noted that the address of the assessee is stated as 10, it is noted that the address of the assessee is stated as 5/4, Clive Row, 4th Floor Room No. 109, P.S. Hare Street Kolkata Floor Room No. 109, P.S. Hare Street Kolkata – 700 001 700 001. We also find that the assessee has filed his return of income for the Assessment Year 2010 the assessee has filed his return of income for the Assessment Year 2010 the assessee has filed his return of income for the Assessment Year 2010-11 on 05/10/2010, for the Assessment Year 2011 05/10/2010, for the Assessment Year 2011-12 on 23/02/2012 and for the Assessment 12 on 23/02/2012 and for the Assessment Year 2012-13 on 30/02/2013, mentioning the address of the assessee co 13 on 30/02/2013, mentioning the address of the assessee co 13 on 30/02/2013, mentioning the address of the assessee company in the Income tax return as 5/4, Clive Row, 4 Income tax return as 5/4, Clive Row, 4th Floor Room No. 109, P.S. Hare Street Kolkata Floor Room No. 109, P.S. Hare Street Kolkata – 700 001. Though, the assessee claims that the registered office of the assessee company 700 001. Though, the assessee claims that the registered office of the assessee company 700 001. Though, the assessee claims that the registered office of the assessee company shifted from this address on 13/12/2010 to shifted from this address on 13/12/2010 to 7D, Nellie Sengupta Sara 7D, Nellie Sengupta Sarani, 2nd Floor, P.S.- New Market, Kolkata – 700 001 700 001, on 01/10/2011 to 55, Shantinagar, Flat No. 2A, 1 55, Shantinagar, Flat No. 2A, 1st Floor, P.S. –Regent Park, Kolkata Regent Park, Kolkata – 700 040 and thereafter to Kamalalaya Centre, Room Kamalalaya Centre, Room No. 417, 4th Floor, 156A, Lenin Sarani, Kolkata Floor, 156A, Lenin Sarani, Kolkata – 700 013 on 15/07/2014, the return of on 15/07/2014, the return of 4 Assessment Year: 2009-10 Techno Tracom Private Limited income was always filed with the old address. income was always filed with the old address. Thus, the assessee has all along been Thus, the assessee has all along been giving a wrong and misleading address of giving a wrong and misleading address of the registered office of its company to the registered office of its company to the Income Tax Department, in its return of income. Income Tax Department, in its return of income. Thus, in our view, the revenue cannot our view, the revenue cannot be blamed. The ld. CIT has in his order passed u/s 263 of the Act on 28/03/2013, stated as The ld. CIT has in his order passed u/s 263 of the Act on 28/03/2013, stated as 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 However, the notice was returned by the Postal Authorities with the remark “Not However, the notice was returned by the Postal Authorities with the remark “Not Found”. Subsequently, an inspector was deput Found”. Subsequently, an inspector was deputed to serve the notice. He also could ed to serve the notice. He also could not locate the assessee at the given address and could not contact any of the not locate the assessee at the given address and could not contact any of the 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 Directors/Representatives/employees of the assessee company. In view of this, the Directors/Representatives/employees of the assessee company. In view of this, the notice had to be served by affixture at the given address. notice had to be served by affixture at the given address. There has been no There has been no compliance and under the circumstances, I have not option but to pass the order compliance and under the circumstances, I have not option but to pass the order 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 From the above, it is clear that notice u/s 263 of the Act has been served on the 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 to as to whether such order passed u/s 263 of the Act without whether such order passed u/s 263 of the Act without service of notice is bad in law. The Hon’ble Supreme Court in the case of service of notice is bad in law. The Hon’ble Supreme Court in the case of service of notice is bad in law. The Hon’ble Supreme Court in the case of CIT vs. Amitabh Bachchan (supra) held as follows: held as follows:- “Section 263 does not require any specific show cause notice detailing Section 263 does not require any specific show cause notice detailing Section 263 does not require any specific show cause notice detailing specific grounds on which revision of assessment order is tentatively ic grounds on which revision of assessment order is tentatively ic grounds on which revision of assessment order is tentatively being proposed affecting initiation of exercise in absence thereof or to being proposed affecting initiation of exercise in absence thereof or to being proposed affecting initiation of exercise in absence thereof or to require commissioner to confine himself to terms of notice and foreclosing require commissioner to confine himself to terms of notice and foreclosing require commissioner to confine himself to terms of notice and foreclosing consideration of any other issue or question consideration of any other issue or question of fact; Commissioner is free of fact; Commissioner is free to exercise his jurisdiction on consideration of all relevant facts, provided to exercise his jurisdiction on consideration of all relevant facts, provided to exercise his jurisdiction on consideration of all relevant facts, provided an opportunity of hearing is afforded to assessee to contest facts on basis an opportunity of hearing is afforded to assessee to contest facts on basis an opportunity of hearing is afforded to assessee to contest facts on basis of which he had exercised revisional jurisdiction of which he had exercised revisional jurisdiction”

Thus, in our view of the above discussion the non Thus, in our view of the above discussion the non-service of notice u/s 263 of service of notice u/s 263 of the Act does not in this case render the order passed u/s 263 of the Act, bad in law. the Act does not in this case render the order passed u/s 263 of the Act, bad in law. the Act does not in this case render the order passed u/s 263 of the Act, bad in law. We now see whether there was re was violation of principles of natural justice violation of principles of natural justice can be cured by setting aside the matter to the file of the ld. CIT(A) with a direction to give the assessee ting aside the matter to the file of the ld. CIT(A) with a direction to give the assessee ting aside the matter to the file of the ld. CIT(A) with a direction to give the assessee company a fresh opportunity of being heard. a fresh opportunity of being heard. 7.1. The ld. Counsel for the assessee The ld. Counsel for the assessee argues that restoring the matter to the ld. Pr. CIT argues that restoring the matter to the ld. Pr. CIT would result in the order to be would result in the order to be passed being barred by limitation and he passed being barred by limitation and he relies on the 5 Assessment Year: 2009-10 Techno Tracom Private Limited judgment of the Hon’ble Delhi High Court in the case of judgment of the Hon’ble Delhi High Court in the case of Tulsi Tracom Private vs. Tulsi Tracom Private vs. Commissioner of Income Tax Commissioner of Income Tax (supra), wherein at para 23, the Court held as follows: , wherein at para 23, the Court held as follows:- “23. This Court has also examined the question as to whether an opportunity of This Court has also examined the question as to whether an opportunity of 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 hearing could now be afforded to the Appellant. However, Section 263(2) of the 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 Act is a clear bar for any order being passed pursuant to a notice under Section 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 the expiry of two years from the end of the financial year in 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 which the order sought to be revised was passed. Thus, there is an outer limit 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. the statute under Section 263 which, in the present case, is 31st March, 2013. the statute under Section 263 which, in the present case, is 31st March, 2013. Since, no useful purpose will be Since, no useful purpose will be served in giving an opportunity to the Appellant 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. of being heard at this stage, this Court answers question No.1 in the negative i.e. 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. in favour of the Assessee and against the Revenue.” 7.2. We are unable to apply the propositions of law laid down in this We are unable to apply the propositions of law laid down in this We are unable to apply the propositions of law laid down in this paragraph to the facts of the case, in view of the provisions of Section 263(3) of the Act, which reads the facts of the case, in view of the provisions of Section 263(3) of the Act, which reads the facts of the case, in view of the provisions of Section 263(3) of the Act, which reads as follows:- “(3) Notwithstanding anything contained in sub “(3) Notwithstanding anything contained in sub- section (2), an order in revision section (2), an order in revision under this section may be passed at any time in the case under this section may be passed at any time in the case of an order which has of an order which has been passed in consequence of, or to give effect to, any finding or direction been passed in consequence of, or to give effect to, any finding or direction been passed in consequence of, or to give effect to, any finding or direction contained in an order of the Appellate Tribunal, the High Court or the Supreme contained in an order of the Appellate Tribunal, the High Court or the Supreme contained in an order of the Appellate Tribunal, the High Court or the Supreme Court. Explanation.- In computing the period of limitation for the purposes In computing the period of limitation for the purposes In computing the period of limitation for the purposes of sub- section (2), the time taken in giving an opportunity to the assessee to be reheard section (2), the time taken in giving an opportunity to the assessee to be reheard section (2), the time taken in giving an opportunity to the assessee to be reheard under the proviso to section 129 and any period during which any proceeding under the proviso to section 129 and any period during which any proceeding under the proviso to section 129 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be under this section is stayed by an order or injunction of any court shall be under this section is stayed by an order or injunction of any court shall be excluded.”

Thus, we set aside the matter to the file of the ld. CIT with a direction to afford Thus, we set aside the matter to the file of the ld. CIT with a direction to afford Thus, we set aside the matter to the file of the ld. CIT with a direction to afford an opportunity to the assessee and pass a fresh order, in accordance with law. an opportunity to the assessee and pass a fresh order, in accordance with law. an opportunity to the assessee and pass a fresh order, in accordance with law.

The decision in the case of The decision in the case of M/s. Brolly Dealcom LLP vs. ITO in ITA No. M/s. Brolly Dealcom LLP vs. ITO in Assessment Year 2008 /2013 Assessment Year 2008-09, order dt. 01/02/2019, relied upon by the , relied upon by the assessee, is not applicable on facts as the notice in question was issued against a non assessee, is not applicable on facts as the notice in question was issued against a non assessee, is not applicable on facts as the notice in question was issued against a non- existing entity. M/s. Brolly Dealcom Pvt. Ltd. was later converted into M/s Brolly M/s. Brolly Dealcom Pvt. Ltd. was later converted into M/s Brolly M/s. Brolly Dealcom Pvt. Ltd. was later converted into M/s Brolly Dealcom Pvt. Ltd. LLP. At para 17 of the order, it was held as follows: Pvt. Ltd. LLP. At para 17 of the order, it was held as follows:- “17. It is clear that there has been violation of the principles of natural justice “17. It is clear that there has been violation of the principles of natural justice “17. It is clear that there has been violation of the principles of natural justice because no opportunity whatsoever was afforded to the appellant before the because no opportunity whatsoever was afforded to the appellant before the because no opportunity whatsoever was afforded to the appellant before the order under section 263 section 263 was passed. Care was not taken to find out from the was passed. Care was not taken to find out from the records that the company since has converted into a limited liability records that the company since has converted into a limited liability 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 partnership on January 9, 2011 was thus not in existence and so notice of 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 have been given to Room No. 24, 3rd floor, P-103, Princep 103, Princep Street, which was the address of the LLP. Care was also not taken to even Street, which was the address of the LLP. Care was also not taken to even 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 ascertain the last known address of the company which were available in the ascertain the last known address of the company which were available in the records. The notices to the company were not sen records. The notices to the company were not sent to or served at the last t to or served at the last 6 Assessment Year: 2009-10 Techno Tracom Private Limited known address of the company viz. Room No. 24 , 3rd Floor, P known address of the company viz. Room No. 24 , 3rd Floor, P-103, Princep 103, Princep Street, Kolkata-700072, from where the LLP was also functioning from January 700072, from where the LLP was also functioning from January 700072, from where the LLP was also functioning from January 9, 2011. Thus, we find that the appellant had no notice of the proceedings 9, 2011. Thus, we find that the appellant had no notice of the proceedings 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 . In such circumstances, the order dated March 28, 2013 . In such circumstances, the order dated March 28, 2013 passed under section is bad in law.” passed under section is bad in law.”

In view of the above discussio In view of the above discussion, we set aside the matter to the file of the ld. CIT n, we set aside the matter to the file of the ld. CIT with a direction to give the assessee an opportunity of being heard and pass a fresh with a direction to give the assessee an opportunity of being heard and pass a fresh with a direction to give the assessee an opportunity of being heard and pass a fresh order u/s 263, in accordance with law. order u/s 263, in accordance with law. The assessee is directed to appear before the ld. The assessee is directed to appear before the ld. Pr. CIT within 30 days of re Pr. CIT within 30 days of receipt of the order, take notice and co ceipt of the order, take notice and co-operate in the proceedings.

In the result, appeal of the assessee is allowed for statistical purposes. In the result, appeal of the assessee is allowed for statistical purposes. In the result, appeal of the assessee is allowed for statistical purposes.