2017 (9) TMI 1041

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....the Commissioner of Income Tax, Kolkata to the Assessee at the address shown therein satisfy the requirements of Section 263(1) of the Act as regards providing the Assessee an opportunity of being heard? (ii) If the answer to questions (i) is in the affirmative, whether on merits the order dated 30th March 2013 passed by the Commissioner of Income Tax, Kolkata under Section 263 of the Act is sustainable in law." Brief facts 3. The Appellant is a company engaged in the business of trading and investment of shares and is assessed to tax. It had filed its return of income for AY 2008-09 on 16th May, 2008 before the ITO Ward-4(1), Kolkata (hereinafter referred to as 'ITO'). Proceedings were initiated under Section 147 of the Act and the assessment order was passed on 10th May, 2010 under Section 143(3)/147 of the Act. According to the Appellant, while passing the assessment order under Sections 143 (3)/147, the Assessing Officer ('AO') had conducted a detailed inquiry with respect to the Appellant's books of accounts and the share capital contribution from the various shareholders. 4. At the time of filing of the returns for AY 2008-09, the Appellant had its registered offi....

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....o the passing of the order dated 30th March, 2013. The main plank of the submissions of Mr. Aggarwal is that the ITO had sent the notice under Section 263 to an incorrect address which resulted in the Appellant not being given an opportunity of being heard on 22nd March, 2013 before the ITO. A copy of the said SCN dated 18th March, 2013 is on record which shows that the same is addressed to the Appellant with the Raja Woodmunt Street address. It is his submission that this address was the old address of the Appellant and the ITO had sufficient knowledge of the shifting of the registered office of the Appellant, in view of the various returns filed for the AY 2009-10, 2010-11, 2011-12 and 2012-13. 9. Mr. Aggarwal relies on the note sheet of the Respondent's file which shows that the copy of the notice under Section 263 was returned to the ITO and was placed back on the file. According to Mr. Aggarwal the order dated 30th March, 2013 was thus passed without hearing the Appellant and is thus bad in law. Mr. Aggarwal submits that the note sheet reveals a noting that 'the evidence of shifting of registered office of the company filed by the `a' (sic Assessee) is received and plac....

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....016] 384 ITR 200 (hereinafter 'Amitabh Bachchan') and only a hearing is to be given. 13. Mr. Manchanda vehemently contends that the Assessee was all along aware of the proceedings and there was a lapse by the Assessee in informing the ITO about the change of its address. Mr. Manchanda relies upon a letter of the Assessee intimating the ITO of the factum of shifting of its registered office to New Delhi. He submits that while the copy of the letter filed by the Assessee at page 5 of the additional documents shows delivery of the said letter on 8th April, 2013, the letter itself is undated. This is a deliberate mischief played by the Assessee who was well aware of the proceedings under Section 263. The fact that the letter is undated and received only on 8th April, 2013, which is subsequent to the order dated 30th March 2013, shows that an incorrect averment is made in the writ petition that the Assessee had informed the ITO of the change of its registered office prior to the order dated 30th March, 2013. Mr. Manchanda, thus submitted that there was no error on the part of the ITO in passing the impugned order and the same deserves to be sustained. Analysis and Findings 14. ....

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....did not do the bare minimum of even perusing the various returns filed by the Assessee prior to the issuance of the notice. 18. From the records produced before us, the submission of Mr. Manchanda is correct to the extent that the notice which was returned to the ITO was reposted to the Delhi address of the Appellant on 20th March, 2013. What needs to be borne in the mind, however, is that the notice was dispatched on 20th March, 2013 to the Delhi address and the hearing was fixed for 22nd March, 2013 at 4pm in the ITO's office at Kolkata. This notice sent on 20th March 2013, was also returned to the ITO, Kolkata on 25th March, 2013, with an endorsement at the back of the envelope, which was not readable either to the counsels or the Court. 19. While agreeing with Mr. Manchanda that the notice was issued on 20th March, 2013, to the Delhi address, the question as to whether it constituted a full opportunity to the Assessee to attend the hearing on 22nd March, 2013 needs no answer as it is obvious that even if the notice had been served, the Assessee did not have adequate time to attend a hearing in Kolkata. Under such circumstances, the CIT recorded in the impugned order d....