TaxTMI 
TaxTMI 
2024 (8) TMI 351
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....e appellant and thus entire proceedings is bad-in-law and is vitiated and deserves to be set-aside and quashed. 1.2. That the impugned notice dated 10.03.2023 & order dated 25.03.2023 are grossly vitiated on account of non-service of the same upon the assessee appellant and thus entire proceedings is bad-in-law and deserves to be set-aside and quashed. The impugned notice dated 10.03.2023 & order dated 25.03.2023 was neither sent by post nor by hand nor by email nor by SMS, however, the same was directly uploaded on the income tax portal of the assessee appellant. 1.3. That the impugned notice dated 10.03.2023 & order dated 25.03.2023 grossly suffers from non-compliance of the mandatory provisions as prescribed u/s. 282 of the Act and the relevant notifications issued in reference thereto with regards to service of notices / orders and thus entire proceedings is bad-in-law and is vitiated and deserves to be set-aside and quashed. 2. That on the facts and in the circumstances of the case, the Id. Principal Commissioner of Income-tax-I, Jaipur grossly erred in holding in the impugned order dated 25.03.2023 that the assessment made by the Assessing Officer, National Faceless Ass....
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.... it is considered deem fit to condone the delay and admit the appeal on merits of the case for hearing. Accordingly, the appeal is admitted for hearing on merits. 3. In ground no. 1, the appellant has challenged that the impugned ex-parte order dated 25.03.2023 was passed against the principles of natural justice as the order is passed without affording opportunity of being heard and without even service of show cause notice dated 10.03.2023 issued u/s. 263 of the Act, that renders entire proceedings as bad-in-law and impugned order deserves to be set-aside and quashed. 4. The Ld. Counsel for the assessee has submitted that the Ld. PCIT has grossly errored in passing the order ex-parte qua the assessee without even service of show cause notice dated 10.03.2023 issued u/s. 263 of the Act upon the assessee-appellant and without providing any opportunity of hearing to the assessee-appellant and thus entire proceedings is bad-in law and deserves to be set-aside and quashed. The AR further submitted that the impugned notice dated 10 03.2023 and order dated 25.03.2023 was neither sent by post nor by hand nor by email nor by SMS to the assesse, however, the same was alleged to be direct....
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....ssessing Officer was erroneous and prejudicial to the interest of revenue, by issuance of SCN notice dated 10.03.2023 [PB 225-227] but he did not mention the fact regarding service of the said SCN on the assessee and proceeded to pass an order u/s 263 on 25.03.2023 ex-parte qua the appellant. Consequently, he set aside the assessment order to the file of Assessing Officer. The Ld. PCIT vide Para 5 observed that proceedings u/s 263 of the Act were initiated and an opportunity of being heard was provided to the assessee vide notice dated 10.03.2023 fixing the case for hearing on 14.03.2023 which was sent to the assessee electronically on the ITBA system. It was also stated in the notice that in case of failure to submit the reply, the matter would be decided on merits on the basis of materials available on record. The assessee has not filed any reply till date. In view of the same the issue decided on the basis of materials available on record. 8. The Ld. AR submitted that when notice dated 06.11.2023 [PB 228 2291] was issued by the Assessing Officer, National Faceless subsequent to revision order passed by the Id. PCIT, was served upon the email address of the assessee appellant, a....
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.... both the sides before passing any order to meet the sole purpose of the rule of fair hearing to avoid the failure of justice. In our view, the decisions passed by the judicial and quasi-judicial courts in violation of the principle of Audi Alteram Partem are bad in law and liable to be quashed. 12. Further, the rule that no decision should be given against a party without giving an opportunity to be heard is emphatically embodied in section 263 (1) itself which states "............ he may after giving the assessee an opportunity of being heard". 13. The Hon'ble Supreme Court in the case of Nawabkhan Abbaskhan v. the State of Gujarat, 1974 AIR 1471 has observed that an order which infringed a fundamental freedom passed in violation of the audi-alteram partem rule was a 'nullity. A determination is no determination if it is contrary to the constitutional mandate of Art. 19. On this footing the externment order was of no effect and its violation was no offence. Any order made without hearing the party affected is void and ineffectual to bind parties from the beginning if the injury is to a constitutionally guaranteed right. May be that in ordinary legislation or at common l....
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....al manner - Whether the order has been passed ignoring the submissions of the assessee admittedly received on the ITBA portal and incorrectly noting that no reply has been given by the assessee? We deliberate that if the Id. PCIT who knowingly gives inadequate time to the assessee to file its reply considering the reply filed irrelevant notices that the assessee is seeking time, we do not find any reason why the Id. PCIT could not grant a hearing saying that time has been granted fix a date and then pass the order after hearing the assessee. However, in the facts of the present case, Ide PCIT failed to do so. So, whether the reply was noticed or remained un-noticed, the consequences are that if it was noticed, Id. PCIT failed to do what he was required to do and if it was not noticed, then he passed an order mechanically. These facts when further noticed in the backdrop where the Id. PCIT after issuing the Short Cause Notice on 23.11.2020 sat over the very same information, made no efforts from any source, whatsoever to address the specific facts or the specific concerns from any other information in the public domain or made any efforts seeking information from the Investigati....
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....provisions of section 282 of the Act. From the impugned order, we find that the decision relied by the Ld. PCIT, do not apply to the peculiar facts of the present case, as the appellant was not served any notice, message or email for initiating the revisionary proceeding and thereafter and even show cause notice (SCN) was not served upon the appellant assessee. Meaning thereby that the Ld. PCI T has passed the 263 order ex-parte qua the appellant assessee in gross violation of principles of natural justice without even service of the SCN. 19. In the present case, there was no service of SCN as it was not sent on the petitioner's email as evident from the downloaded copy of SCN as the email of the appellant was not reflected on photo print of the SCN copy generated from the e-portal/ITBA portal of the Department, although the appellant has mentioned updated email addresses in its ITRs and personal profile on the ITBA portal of the respective Assessment Years as above. 20. In our view, it is essential for the Ld. PCIT that before any action is taken, a communication of the SCN notice and other notices shall be ensured in terms of the provisions as enumerated under the provision....