2014 (5) TMI 1132

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....respectively. Issues are common and the appeals are heard together. These are being disposed of by this common order. 2. At the outset, it is noticed that there a delay of 290 days in filing of these appeals. In this regard, an affidavit has been filed by the assessee's advocate, Shri Pradip Aich. In this affidavit, the consultant has admitted that the delay in filing of the appeals were absolutely that of the consultant because he was not very conversant with the Tribunal matter and hence could not advise his client correctly. In this regard, Ld. counsel for the assessee referred to decision of the Tribunal in the case of M/s Fibre Box Company v. ITO in ITA No. 1301 & 983/Kol/2008. In these cases, vide order dated 24-12-2008 the Tribuna....

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.... u/s 263 of the Act, is liable to be quashed on this ground itself. In this regard, Ld. counsel for the assessee referred to the decision of Hon'ble Allahabad High Court in the course of cit v. Rajesh Kumar Pandey (2012) 25 taxmann.com 242 (All.). The Ld. counsel for the assessee further referred to the decision of the Tribunal in the case of Satish Kumar Kashri v. ITO 104 ITD 382 (Pat). 6. Ld. DR on the other hand submitted that above is not the material defect and he submitted that there is no reason to set aside the order u/s. 263 of the Act, on this account. 7. We have carefully considered the submissions and perused the record. We find that Section 263(1) of the Act provides as under:- "The CIT may call for and examine t....

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.... defective service of notice, it provides that if the assessee has cooperated, it will not be open for him to raise the plea, whereas in the instant case, it is not the case of the service of notice, but the initial issuance of notice, which has not been signed by the competent authority as a finding has been recorded by the Tribunal that the notice has been issued under the signature of Income-tax (technical), whereas in view of the provisions of powers under Section 263(1), it is only the Commissioner of Income-tax to issue notice. It is also relevant to add that pleas can be raised only out of the judgment passed by the Tribunal or other authorities, but the plea, which was not raised at any stage, cannot be raised for the first time bef....