M/s Brolly Dealcom Pvt Ltd, Kolkata V. I.T.O Wd - 5(4),kolkata, Kolkata

ITA 1543/KOL/2013

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5739 (ITAT-KOLKATA)
• Duration Of Justice: 5 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 27-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A K TULSIYAN; P JHUNJHUNWALA ARS
• Keywords: Opportunity of being heard; Principle of natural justice; Question of law; Fair market value; Reassessment proceedings
• Section: 148; 263; 63; 142(1); 201(1)

Judgement Text

1 ITA NO. 1543/KOL/2013 M/S. BROLLY DEALCOM PVT. LTD., AY 2008-09 , B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 1543/KOL/2013 ASSESSMENT YEAR: 2008-09 M/S. BROLLY DEALCOM LLP (FORMERLY M/S. BROLLY DEALCOM PVT. LTD.) (PAN: AAKFB6608B) VS. INCOME-TAX OFFICER, WD-5(4), KOLKATA. APPELLANT RESPONDENT DATE OF HEARING 03.01.2019 DATE OF PRONOUNCEMENT 01.02.2019 FOR THE APPELLANT SHRI A. K. TULSIYAN, FCA & SRI P. JHUNJHUNWALA, ARS FOR THE RESPONDENT SHRI A. K. SINGH, CIT, DR ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL PREFERRED BY THE ASSESSEE IS AGAINST TH E ORDER OF THE LD. CIT-II, KOLKATA PASSED U/S. 263 OF THE INCOME-TAX ACT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT) DATED 28.03.2013 FOR AY 2008-09. 2. AT THE OUTSET ITSELF IT HAS BEEN BROUGHT TO OUR NOTICE THAT THIS IS SECOND ROUND OF LITIGATION BEFORE THIS TRIBUNAL. DURING THE FIRST ROUND, THE TRIBUNAL HAD TAGGED THIS APPEAL ALSO WITH SIMILAR APPEALS FILED BY DIFFERENT ASSESS EES AGAINST IDENTICAL IMPUGNED ORDERS PASSED BY LD. CIT U/S. 263 OF THE ACT AND THEREAFTE R DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT ADJUDICATING THE SPECIFIC GROUND RAISED BY THIS ASSESSEE AN LLP WHICH IS THE SUCCESSOR-IN-INTEREST (FROM 19.01.2011) OF THE DIS SOLVED PRIVATE LIMITED COMPANY THAT IT 2 ITA NO. 1543/KOL/2013 M/S. BROLLY DEALCOM PVT. LTD., AY 2008-09 WAS NOT GIVEN AN OPPORTUNITY TO BE HEARD BY THE LD. PR. CIT DURING THE PROCEEDINGS UNDER SECTION 263 OF THE ACT WHEREIN THE IMPUGNED ORDER W AS PASSED; AND SO ACCORDING TO THE ASSESSEE, WHICH IS AN LLP IS THAT SINCE THE IMPUGNE D ORDER WAS PASSED BY LD. PR. CIT WITHOUT AFFORDING AN OPPORTUNITY OF HEARING WAS, TH EREFORE, BAD IN LAW FOR VIOLATION OF NATURAL JUSTICE. IN ORDER TO BUTTRESS THIS LEGAL C HALLENGE IT WAS POINTED OUT THAT THE SHOW CAUSE NOTICE WAS ISSUED BY LD. PR. CIT TO THE ERSTW HILE ASSESSEE COMPANYS ADDRESS WHICH WAS BEFORE MAY 17, 2010 AFTER WHICH IT HAS CHANGED TO ADDRESS AT PRINCEP STREET AND CONTINUED IN THE SAME ADDRESS AFTER THE ASSESSEE CO MPANY GOT CONVERTED TO AN LLP ON 19.01.2011. ACCORDING TO THE ASSESSEE, AFTER CONVE RSION TO AN LLP ITS ADDRESS WAS AT PRINCEP STREET ADDRESS AND SINCE HAS NOT RECEIVED A NY 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. CI T BEFORE PASSING THE IMPUGNED ORDER. SO THE ASSESSEE IN THE FIRST ROUND OF APPEAL BEFORE TH E 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 GR OUND WAS NOT ADJUDICATED BY THE TRIBUNAL. AND AS STATED EARLIER, THE TRIBUNAL DISMI SSED THE APPEAL OF ASSESSEE ALONG WITH OTHER TAGGED APPEALS OF OTHER ASSESSEES. AGAINST THE DISMISSAL OF ITS APPEAL BY THE TRIBUNAL, THE ASSESSEE PREFERRED AN APPEAL BEFORE T HE HONBLE HIGH COURT, WHEREIN THE HONBLE HIGH COURT WAS PLEASED TO SET ASIDE THE ORD ER OF THE TRIBUNAL PASSED IN THE FIRST ROUND DATED 10.08.2015 AGAINST THIS ASSESSEE AND RE MANDED THE APPEAL BACK TO THE TRIBUNAL TO DECIDE SPECIFICALLY AS TO WHETHER THERE WAS A VI OLATION 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 MATERIAL AVAILABLE ON RECORD . WE NOTE THAT IN THE FIRST ROUND THE TRIBUNAL HAS PASSED A COMMON ORDER IN THE CASE OF M /S. BROLLY DEALCOM PVT. LTD. IN ITA NO. 1543/KOL/2013 DATED 10.08.2015 WHEREIN THE TRIB UNAL WAS PLEASED TO DISMISS THE APPEAL OF THE ASSESSEE ALONG WITH SEVEN APPELLANTS CHALLENGING SIMILAR ORDERS OF THE LD. PR. 3 ITA NO. 1543/KOL/2013 M/S. BROLLY DEALCOM PVT. LTD., AY 2008-09 CIT. AGAINST THE IMPUGNED ORDER OF THE TRIBUNAL DA TED 10.08.2015, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE HONBLE HIGH COURT WHEREIN THE HONBLE HIGH COURT WAS PLEASED TO PASS AN ORDER IN ITA NO. 25 OF 2018, GA NO. 450 OF 2017 DATED 07.05.2018 WHEREIN THE HONBLE HIGH COURT REMANDED THE MATTER BACK TO THIS TRIBUNAL WITH THE FOLLOWING OBSERVATION AND SPECIFIC DIRECTION AS INFRA: ' THE COURT : THE LIMITED QUESTION WHICH IMPRESSES THIS COURT IS WHETHER THE ARBITRAL TRIBUNAL COULD HAVE UPHELD THE COMMISSIONE R'S ORDER UNDER SECTION 263 OF THE INCOME TAX ACT, 1961 WITHOUT ADDRESSING THE APP ELLANT'S CHALLENGE THERETO ON THE GROUND THAT THE APPELLANT HAD NOT BEEN SERVED A NY NOTICE PRIOR TO SUCH ORDER BEING MADE AND THAT THE APPELLANT WAS NOT AFFORDED ANY OPPORTUNITY OF HEARING BEFORE THE COMMISSIONER PASSED THE RELEVANT ORDER. SEVERAL OTHER TECHNICAL POINTS ARE RAISED, WHICH MA Y NOT BE WORTHY OF CONSIDERATION. IT IS NOT IN DISPUTE THAT THE COMMISSIONER'S ORDER UNDER SECTION 263 OF THE ACT PERTAINS TO AN ASSESSMENT REGARDING A LIMITED LIABI LITY COMPANY FOR THE ASSESSMENT YEAR 2008-09. IT IS ALSO NOT IN DISPUTE THAT SUBSEQ UENT TO SUCH ASSESSMENT YEAR AND PRIOR TO THE COMMISSIONER'S ORDER BEING PASSED ON M ARCH 28, 2013, THE RELEVANT COMPANY WAS DISSOLVED UPON ITS ASSETS AND LIABILITI ES BEING TAKEN OVER AS A GOING CONCERN BY THE APPELLANT HEREIN AS A LIMITED LIABIL ITY PARTNERSHIP. THERE CAN BE NO DOUBT THAT UPON THE ASSETS AND LIABILITIES OF A BUS INESS ENTITY BEING TAKEN OVER BY ANOTHER AS A GOING CONCERN, THE PREVIOUS LIABILITIE S OF THE ORIGINAL ENTITY FASTEN ON TO THE SUBSEQUENT ENTITY. IT CAN ALSO NOT BE DISPUT ED THAT IF A PARTICULAR ASSESSING OFFICER AND A RELEVANT COMMISSIONER HAD JURISDICTIO N OVER THE ORIGINAL ENTITY, SUCH AUTHORITIES WOULD CONTINUE TO HAVE JURISDICTION TO REOPEN THE MATTER PERTAINING TO PREVIOUS ASSESSMENT YEARS WHEN THE ENTITY WAS IN EX ISTENCE. THE OBJECTIONS RAISED ON SUCH GROUNDS DO NOT APPEAR TO BE WORTHY OF ANY F URTHER CONSIDERATION. HOWEVER, WHAT IS OF IMPORTANCE IS THAT EVEN THOUGH 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 PROVI SION MANDATES AN OPPORTUNITY OF HEARING TO BE AFFORDED TO THE ASSESSEE. IN THE P RESENT CASE, UPON THE ASSESSEE COMPANY BEING DISSOLVED, SUCH OPPORTUNITY OF HEARIN G OUGHT TO HAVE BEEN GIVEN TO THE PRESENT APPELLANT, PARTICULARLY, SINCE IT APPEA RS THAT THE PRESENT APPELLANT KEPT THE AUTHORITIES INFORMED OF THE COMPANY BEING DISSO LVED UPON THE APPELLANT LIMITED LIABILITY PARTNERSHIP TAKING OVER ITS BUSINESS, ASS ETS AND LIABILITIES AS A GOING CONCERN. 4 ITA NO. 1543/KOL/2013 M/S. BROLLY DEALCOM PVT. LTD., AY 2008-09 IT IS EVIDENT FROM A LETTER DATED MAY 6, 2013, ISSU ED BY THE APPELLANT HEREIN TO THE RELEVANT COMMISSIONER THAT THE APPELLANT DID NOT HA VE ANY PRIOR KNOWLEDGE OF THE COMMISSIONER REOPENING THE MATTER OR INTENDING TO P ASS 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 REMAINI NG UNATTENDED TO AND A FURTHER NOTICE INFORMING THE ASSESSEE OF A FRESH HE ARING ON MARCH 18, 2013, IT IS NOT CLEAR FROM THE COMMISSIONER'S ORDER UNDER SECTI ON 263 OF THE ACT AS TO WHETHER THE PRESENT APPELLANT WAS SERVED THE ORIGINAL NOTIC E OR MADE AWARE OF THE SUBSEQUENT DATE OF HEARING. A POINT WAS SQUARELY TAKEN BEFORE THE TRIBUNAL IN C OURSE OF THE CHALLENGE TO THE COMMISSIONER'S ORDER PASSED UNDER SECTION 263 OF TH E ACT THAT NO OPPORTUNITY WAS AFFORDED TO THE APPELLANT PRIOR TO THE ORDER BEING PASSED BY THE COMMISSIONER. IT APPEARS THAT THE TRIBUNAL DEALT WITH A BUNCH OF MATTERS AND DISPOSED OF THE SAME BY A LEAD ORDER. THOUGH THE ORDER IMPUGNED HEREIN R ECORDS THAT THE FACTS IN EVERY CASE WERE LOOKED INTO, THE ORDER IMPUGNED DOES NOT EXPRESSLY ADDRESS THE SPECIFIC POINT RAISED BY THE APPELLANT HEREIN BEFORE THE TRI BUNAL THAT THE APPELLANT ASSESSEE AS THE SUCCESSOR-IN-INTEREST OF THE ORIGINAL ASSESS EE HAD NO NOTICE OR KNOWLEDGE OF ANY HEARING FIXED BY THE COMMISSIONER PRIOR TO THE COMMISSIONER PASSING THE ORDER UNDER SECTION 263 OF THE ACT. IT IS POSSIBLE THAT IN THE WAKE OF THE MANY MATTERS INVOLVING THE SAME ISSUE, THIS SPECIAL FEATURE OF THE MATTER ESCAPED THE ATTENTION OF THE TRIBUNAL. HOWEVER, IT WAS IMPERATIVE FOR THE APPELLATE TRIBUNAL TO ADDRESS TH E ISSUE SINCE A PREVIOUS OPPORTUNITY OF HEARING IS NECESSARY TO BE AFFORDED TO AN ASSESSEE BEFORE AN ORDER UNDER SECTION 263 OF THE ACT CAN BE MADE BY A COMMI SSIONER. ACCORDINGLY, ON THE LIMITED ASPECT AS TO THE VIOLAT ION OF THE PRINCIPLES OF NATURAL JUSTICE, THE ORDER IMPUGNED CANNOT BE SUSTAINED IN SO FAR AS IT PERTAINS TO COMPANY BROLLY DEALCOM PVT. LTD. WHICH HAS BEEN TAKEN OVER AS A GOING CONCERN BY THE APPELLANT HEREIN. IN OTHER WORDS, THE APPELLATE TRI BUNAL HAS TO SATISFY ITSELF AS TO WHETHER THE APPELLANT HEREIN AS THE SUCCESSOR-IN-IN TEREST OF BROLLY DEALCOM PVT. LTD. HAD NOTICE OF THE HEARING UNDER SECTION 263 OF THE ACT. IF THERE IS SUFFICIENT MATERIAL THAT THE ORIGINAL ASSESSEE AND THE PRESENT APPELLANT CARRIED ON BUSINESS AT THE SAME PREMISES AND NOTICE WAS SERVED AT SUCH PRE MISES, IT WILL NOT DO FOR THE APPELLANT TO FEIGN IGNORANCE BY MERELY STATING THAT THE NOTICEE WAS ERRONEOUSLY ADDRESSED TO A DEFUNCT ENTITY. ITA NO. 25 OF 2018 AND GA NO.450 OF 2017 ARE DISPOS ED OF BY SETTING ASIDE THE ORDER IMPUGNED DATED AUGUST 10, 2015 IN SO FAR AS I T CONCERNS BROLLY DEALCOM PVT. LTD. FOR THE APPELLATE TRIBUNAL TO APPLY ITS M IND TO THE LIMITED ISSUE INDICATED HEREINABOVE AND PASS A FRESH REASONED ORDER. 5 ITA NO. 1543/KOL/2013 M/S. BROLLY DEALCOM PVT. LTD., AY 2008-09 THERE WILL BE NO ORDER AS TO COSTS. 4. THE HONBLE HIGH COURT BY THE AFORESAID ORDER HA S 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 PV T. 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 PROCEEDIN GS 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 HONBLE HIGH COURT. IN ORDER TO ADJUDICATE THIS IS SUE LET US FIRST LOOK AT THE ADDRESSES OF PRIVATE LIMITED COMPANY AND THAT OF THE LLP. FOR T HAT WE HAVE GONE THROUGH THE RECORD PRODUCED BY THE LD. CIT, DR OF THE COMMISSIONERS F ILE 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 COPY OF THE CERTIFICATE OF REGISTRATION OF CONVERSION OF THE PR IVATE LIMITED COMPANY TO LLP DATED 19.01.2011 WHEREIN WE NOTE THAT IT IS THE FORM 19 A S PER RULE 32(1), CERTIFICATE OF REGISTRATION ON CONVERSION OF M/S. BROLLY DEALCOM P RIVATE LIMITED TO M/S. BROLLY DEALCOM LLP, LLP IDENTITY NO. AAA-3449 WHICH HAS BEEN CERTI FIED AS REGISTERED PURSUANT TO SEC. 58(1) OF THE LIMITED LIABILITY PARTNERSHIP ACT, 200 8 ON 19.01.2011 WHICH HAS BEEN SIGNED BY THE REGISTRAR WHEREIN WE NOTE THE ADDRESS IS REC ORDED AS M/S. BROLLY DEALCOM LLP, P- 103, PRINCEP STREET, 3 RD FLOOR, ROOM NO. 24, KOLKATA, WEST BENGAL-700072 . 5. OUR ATTENTION WAS DRAWN TO PAGE NO. 38 OF THE NE W PAPER BOOK AS WELL AS TO PAGE 10 OF THE OLD PAPER BOOK FILED DURING THE FIRST ROUND, WHICH WE NOTE IS THE COPY OF THE LETTER DATED 16.04.2012 FILED BEFORE THE AO INTIMATING ABO UT THE CHANGE IN STATUS OF M/S. BROLLY DEALCOM PVT. LTD. TO M/S. BROLLY DEALCOM LLP AND TH E CHANGE OF PAN AND ALSO THE CHANGE OF ADDRESS OF THE LLP. FOR READY REFERENCE THE SAM E IS REPRODUCED BELOW: 6 ITA NO. 1543/KOL/2013 M/S. BROLLY DEALCOM PVT. LTD., AY 2008-09 7 ITA NO. 1543/KOL/2013 M/S. BROLLY DEALCOM PVT. LTD., AY 2008-09 6. FROM A PERUSAL OF THE AFORESAID LETTER DATED 16 .04.2012 FILED BEFORE THE ITO, WD- 5(4), KOLKATA IT IS EVIDENT THAT THE ASSESSEE HAD I NTIMATED ABOUT THE CHANGE OF ADDRESS AND CHANGE IN STATUS AND SPECIFYING THE EARLIER PAN AS WELL AS THE PRESENT PAN WHICH IS EVIDENT FROM THE LETTER ITSELF (SUPRA). WE ALSO NOTE THAT T HE INCOME TAX RETURN OF THE LLP FOR ASSESSMENT YEAR 2011-12, FILED BY THE ASSESSEE LLP ON 24.09.2011, UNDER ITS NEW PAN AAKFB6608B MENTIONING THE PRINCEP STREET ADDRESS AS AFORESAID. WITH THE AFORESAID BACKGROUND, WE NOTE FROM THE PERUSAL OF THE DOCUMEN TS IN THE COMMISSIONERS FILE THAT THE SHOW CAUSE NOTICE ( FIRST NOTICE ) WAS SENT ON 18.03.2013 TO THE PRINCIPAL OFFICER OF M/S. BROLLY DEALCOM PVT. LTD., 16, G. C. AVENUE, KOLKATA -700 013 AS WELL AS TO 9/1, R. B. C. ROAD, KOLKATA-700 028 DIRECTING THE ASSESSEE TO BE PRESENT ON 25.03.2013. THEREAFTER, THE REMINDER WAS SENT ON 25/26.03.2013 DIRECTING THE ASSESSEE TO APPEAR ON 28.03.2013 WHI CH WAS ALSO SENT TO M/S. BROLLY DEALCOM PVT. LTD., 16, G. C . AVENUE, KOLKATA-700 013 AND 9/1, R. B. C. ROAD, KOLKATA-700 028 AND WE NOTE THAT THE AO IN THE ORIGINAL ASSESSMENT ORDER DATED 30.04.2010 AND THE LD. CIT HAS PASSED THE 263 ORDER ON 26.03.2013 IN THE ADDRESS GIVEN OF M/S. BROLLY DEALCOM PVT. LTD., 16, G. C. AVENUE, KOLKATA-700013 AND FURTHER WE NOTE THAT THE ORIGINAL ASSESSMENT ORDER DATED 30.04 .2010 AND IN THE SHOW CAUSE NOTICE ISSUED BY LD. PR. CIT BEFORE PASSING THE IMPUGNED O RDER 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 O F LD CIT, AND CONTENDING THAT ASSESSEE WAS SERVED WITH THE NOTICE, DREW OUR ATTEN TION TO THE SHOW CAUSE NOTICE OF LD. PR. CIT AND CONTENDED THAT IT WAS DELIVERED TO M/S. BRO LLY DEALCOM PVT. LTD. ON 20.03.2013. ACCORDING TO HIM, IT IS EVIDENT FROM A PERUSAL OF T HE TEAR OFF ACKNOWLEDGMENT SLIP AVAILABLE IN THE FILE WHEREIN THE DATE AND SEAL OF M/S. BROLL Y 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, 8 ITA NO. 1543/KOL/2013 M/S. BROLLY DEALCOM PVT. LTD., AY 2008-09 DR, GOES ON TO SHOW THAT THE COMPANY WAS SERVED NOT ICE AND PURSUANT TO THE SAME, THE COMPANY HAD APPOINTED THE AFORESAID CHARTERED ACCOU NTANTS. AND ALSO HE DREW OUR ATTENTION TO ANOTHER TEAR OFF SLIP WHEREIN THE SE AL OF PRIVATE LTD. COMPANY (ALL IN CAPITAL LETTERS) SIGNED BY THE ERSTWHILE DIRECTOR OF DISSOL VED COMPANY (HEREINAFTER THE SECOND TEAR OFF SLIP) SHRI SUSHANTA KUMAR PARIDA, HIS MOBILE NU MBER AND DATE 31.03.2013 IS WRITTEN. THEREFORE, ACCORDING TO HIM, THE ASSESSEE COMPANY H AS BEEN SERVED NOTICE AND IN THAT PROCESS THE ASSESSEE WAS KNOWING ABOUT THE SEC. 26 3 PROCEEDING. PER CONTRA, OUR ATTENTION WAS DRAWN BY LD AR, TO THE AFFIDAVIT FILED BY ERSTW HILE DIRECTOR OF M/S. BROLLY DEALCOM PVT. LTD. FROM WHICH IT IS DISCERNED THAT THE EARLIER CH ARTERED ACCOUNTANT WHO USED TO AUDIT THE COMPANY TELEPHONICALLY INFORMED HIM ABOUT THE ORDER PASSED BY THE LD. CIT U/S. 263 OF THE ACT AND HE HAD SIGNED THE POWER OF ATTORNEY AUTHORI ZING THE M/S. G. K. TULSIYAN & CO. (EARLIER CHARTERED ACCOUNTANT OF THE PVT. LIMITED C OMPANY) ONLY FOR THE PURPOSE OF COLLECTING THE IMPUGNED ORDER PASSED BY LD. CIT U/S 263 OF THE ACT AND THAT AUTHORIZATION BY POA, ACCORDING TO LD. AR, IN NO WAY CAN BE CONS TRUED TO SAY THAT SHOW CAUSE NOTICE OF THE HEARING U/S. 263 OF THE ACT WAS SERVED UPON THE SUCCESSOR-IN-INTEREST THE LLP WHICH ENTITY WAS NEVER IN THE KNOW-HOW ABOUT ANY ACTION T AKEN BY THE DISSOLVED COMPANY AND THAT TOO WHEN THE POA WAS GIVEN AFTER THE PASSING OF THE IMPUGNED ORDER AND, THEREFORE, THE LD. AR STRESSED THAT NO OPPORTUNITY OF HEARING WAS GIVE N TO THE SUCCESSOR-IN-INTEREST BEFORE THE LD. CIT PASSED ORDER U/S. 263 OF THE ACT. SO, ACCO RDING TO LD. AR NO NOTICE WAS SERVED UPON THE LLP WHICH WAS FUNCTIONING FROM A REGISTERE D ADDRESS AT PRINCEP STREET AND EVEN IF FOR ARGUMENT SAKE IF THE ERSTWHILE DIRECTOR OF DISS OLVED COMPANY HAS ENDORSED AS RECEIVING THE IMPUGNED ORDER AND AFFIXED THE SEAL OF THE COMPANY WHICH IS NON-E ST IN THE EYES OF LAW IN NO MANNER CAN BE CONSTRUED AS SERVICE OF NOTICE TO THE SUCCESSOR-IN-INTEREST LLP WHICH IS A DIFFERENT ENTITY FUNCTIONING AT P-103, PRINCEP ST REET, 3 RD FLOOR, ROOM NO. 24, KOLKATA-72. AND THE LD. AR DREW OUR ATTENTION TO THE IMPUGNED O RDER OF THE LD. PR. CIT PASSED U/S. 263 DATED 28.03.2013, WHEREIN IT WAS POINTED OUT THAT T HE LD. PR. CIT HAS SPECIFICALLY NOTED IN THE CAUSE TITLE IN COLUMN NO. 9 THAT NONE APPEARED AND HAS RECORDED THAT NO SUBMISSION HAS BEEN FILED BY THE ASSESSEE AND THUS IT WAS BROUGHT TO OUR NOTICE THAT THE LD. PR. CIT HAS NOT 9 ITA NO. 1543/KOL/2013 M/S. BROLLY DEALCOM PVT. LTD., AY 2008-09 SAID ANYTHING ABOUT ANY SUBMISSION MADE BY THE AR/A SSESSEE IN THE ORDER PASSED U/S. 263 OF THE ACT. 8. WE ON A PERUSAL 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 LT D 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 WA S SERVED LIKE NOTICE, ORDER ETC. SO, THE TEAR OF ACKNOWLEDGMENT SLIP IS FOUND BLANK EXCE PT 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 DOE S NOT IN ANY WAY GIVES THE IMPRESSION THAT THE SHOW CAUSE NOTICE WHICH IS ADDRESSED TO CO MPANYS EARLIER ADDRESS AT G.C. AVENUE DATED 18.03.2013 HAVE BEEN SERVED UPON THE L LP AT ITS ADDRESS AT PRINCEP STREET, IT IS ONLY A BLANK TEAR OF ACKNOWLEDGMENT SLIP WITH A SEAL AND DATE, WHICH DOESNT EVEN CONVEY THAT THE STAFF OF DISSOLVED PRIVATE LIMITED COMPANY RECEIVED THE SCN ON 20.03.2013. MOREOVER, THE ERSTWHILE DIRECTOR OF COMPANY ON SWOR N AFFIDAVIT HAS DENIED THE RECEIPT OF SCN ON 20.03.2013, WHICH FACT HAS NOT BEEN CONTROVE RTED BY THE REVENUE BY ADDUCING ANY AFFIDAVIT OF PROCESS-SERVER OF THE DEPARTMENT OF SE RVING THE SCN ON 20.03.2013 TO THE COMPANY AND MOST IMPORTANT EXPLAINING AS TO WHY I S THE TEAR OF ACKNOWLEDGMENT SLIP. WAS WITH A SEAL OF COMPANY AND DATE WRITTEN ON IT A ND REMAINING PORTION WAS LEFT BLANK. SO, WITH THE FIRST TEAR OFF ACKNOWLEDGEMENT SLIP WE ARE NOT PERSUADED TO ACCEPT THAT THE PRIVATE LIMITED COMPANY OR THE LLP RECEIVED THE SCN ON 20.03.2016. 9. COMING TO SECOND TEAR OFF SLIP DATED 31.03 .2013 SIGNED BY ERSTWHILE DIRECTOR OF DISSOLVED COMPANY EVIDENCES THE COLLECTION OF IMPUG NED ORDER PASSED ON 28.03.2013 WHICH MEANS THE EX-DIRECTOR COLLECTED THE IMPUGNED ORDER OF PR. CIT AFTER FOUR DAYS OF PASSING OF THAT ORDER, IS IN NO WAY HELP THE REVENUE TO CONTEN D THAT THE ASSESSEE WAS BROUGHT TO NOTICE 10 ITA NO. 1543/KOL/2013 M/S. BROLLY DEALCOM PVT. LTD., AY 2008-09 REGARDING THE SECTION 263 PROCEEDING BEFORE PR. CIT , SO THAT IT COULD HAVE PARTICIPATED IN THE SAID PROCEEDINGS AND ABOUT THE SECOND TEAR OFF SLIP WE WILL DISCUSS IN DETAIL LATER IN THIS ORDER . 10. IN ORDER TO FIND AN ANSWER TO THE QUESTION REMA NDED TO US BY THE HONBLE HIGH COURT, WE HAVE ALSO CAREFULLY GONE THROUGH THE RECORDS MAI NTAINED BY THE LD. PR. CIT AND WE COULD NOT FIND FROM A PERUSAL OF THE ORDER SHEET OR FROM THE ORDER OF LD. PR. CIT PASSED U/S. 263 OF THE ACT ANY NOTICE BEING ISSUED IN THE ADDRESS OF T HE LLP WHICH IS P-103, PRINCEP STREET, 3 RD FLOOR, ROOM NO. 24, KOLKATA, WEST BENGAL-700072. WE NOTE THAT THE SUCCESSOR-IN-INTEREST OF THE ERSTWHILE DISSOLVED PVT. LTD. COMPANY HAD DU LY INFORMED THE AO I.E. ITO, WARD-5(4) ON 16.04.2012 (SUPRA) ABOUT THE CHANGE IN ADDRESS AND CHANGE IN STATUS AND ALSO REFERRED IN THE LETTER, THE EARLIER PAN AS WELL AS THE PRESENT PAN AND THERE IS A SEAL OF THE ITO, WARD- 5(4) ENDORSING HAVING RECEIVED THE SAME ON 16.04.20 12 AND THE RETURN OF INCOME FOR AY 2011-12 WAS FILED BY THE LLP REFLECTING THE NEW PA N AS WELL AS PRINCEP STREET ADDRESS FILED ON 24.09.2011. AND ACCORDING TO THE FILE OF LD. PR CIT THE FIRST NOTICE WAS ISSUED ON 18.03.2013 TO TWO ADDRESSEES AT G. C. AVENUE AND TO R B. C ROAD AND NOT THE PRINCEP STREET ADDRESS OF LLP. 11. WE ALSO NOTE THAT IN THE DEPARTMENTS FILE, TWO COPIES OF THE SHOW CAUSE NOTICE ISSUED BY PR. CIT DATED MARCH 25/26, 2013 OF WHICH ONE WE NOTE IS THE OFFICE COPY AND OTHER IS A PHOTO 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 N AME/CAPTION OF THE COMPANY. HOWEVER, A CAREFUL PERUSAL OF THE PHOTOCOPY OF THE SHOW CAUS E NOTICE, AT THE BOTTOM OF THE SHOW CAUSE NOTICE, WE NOTE A SCRIBBLING WHICH IS ILLEGIB LE HAND WRITTEN WHICH PORTION READS P- 103, PRINCEP STREET, KOL-72 AND A SIGNATURE WITH A N 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 NO TICE WITH THE AFORESAID ENDORSEMENT 11 ITA NO. 1543/KOL/2013 M/S. BROLLY DEALCOM PVT. LTD., AY 2008-09 WHICH IS THE TRUMP CARD OF THE REVENUE TO SUGGEST T HAT NOTICE HAS BEEN SERVED AT THE PRINCEP STREET ADDRESS IS REPRODUCED BELOW: 12 ITA NO. 1543/KOL/2013 M/S. BROLLY DEALCOM PVT. LTD., AY 2008-09 12. ASSAILING THE SCRIBBLING ON AFORESAID PHOTOCOPY OF SHOW CAUSE NOTICE, THE LD. AR WONDERED AND POINTED OUT THE INFIRMITIES ON IT TO S HOW THAT IT WAS AN AFTERTHOUGHT ACTION TO WRIGGLE OUT OF THE CONUNDRUM THE DEPARTMENT HAS FAL LEN INTO, FOR NOT BEING VIGILANT AND TO ESCAPE FROM ITS SHEER NEGLIGENCES HAS VENTURED TO DO SUCH THINGS TO CREATE AT LEAST A DOUBT THAT THE NOTICE WAS SERVED IN PRINCEP STREET ADDRES S. ACCORDING TO LD. AR, IF THE SAID COMMUNICATION WAS INFACT SENT TO PRINCEP STREET, TH AT ADDRESS SHOULD HAVE APPEARED BELOW THE NAME/CAPTION OF THE ADDRESSEE. ACCORDING TO HIM , IF THE PRINCEP STREET ADDRESS WAS FOUND OUT AFTER THE SAID NOTICE WAS PREPARED, THE G.C. AVENUE AND R.B.C. ROAD ADDRESSES SHOULD HAVE BEEN STRUCK OFF AND THE PRINCEP STREET ADDRESS SHOULD HAVE BEEN INCORPORATED WHICH IS NOT THE CASE. THE LD. AR POINTED OUT THAT IN THE PRINCEP STREET ADDRESS THERE IS NO MENTION OF ROOM NUMBER OR AS TO WHICH FLOOR IS NOT WRITTEN (I.E. ROOM NO. 24, 3 RD FLOOR ) WHICH FACT ITSELF BRINGS OUT THE FOLLY THAT THIS SC RIBBLING WAS AN AFTER- THOUGHT TO COVER THEIR MISTAKE IN ADDRESSING TO EARLIER ADDRESSES (G. C. A VENUE AND R.B.C ROAD), WHICH IS APPARENT. AS FAR AS THE SIGNATURE AND MOBILE NUMBE R OF THE PURPORTED RECIPIENT WHO HAS DESCRIBED HIMSELF/HERSELF AS STAFF THE LD. AR POINTED OUT THAT THE SIGNATURE OF THE RECIPIENT IS NOT IDENTIFIABLE, SINCE IT DOES NOT PERTAIN TO A NY STAFF EMPLOYED BY THE LLP OR TO EVEN KNOW PERSON OF PARTNER OF THE LLP. AND THE DESIGNA TION STAFF UNDER THE ANONYMOUS SIGNATURE IS, TO SAY THE LEAST IS VAGUE AND IT WAS POINTED OUT THAT THERE IS NO RECEIVING SEAL OF THE LLP. IT WAS BROUGHT TO OUR NOTICE THAT IN THE A FFIDAVIT FILED ON BEHALF OF ONE OF THE PARTNERS OF THE LLP STATES THAT THE AUTHOR OF THE A CKNOWLEDGMENT APPEARING IN THE BOTTOM HALF OF THE PHOTOCOPY OF THE COMMUNICATION DATED MA RCH 25/26, 2013 COULD NOT BE IDENTIFIED. IT IS ASSERTED IN THE AFFIDAVIT THAT SUCH HAND WRITING AND SIGNATURE IS NOT OF ANY PERSON WORKING FOR LLP AT ROOM NO. 24, 3RD FLOOR, P-L03, PRINCEP STREET, KOLKATA-700072. THE LD. AR POINTED OUT THAT SINCE THE PARTNER OF LL P IS FAMILIAR WITH THE EMPLOYEES HAND WRITING AND SIGNATURE HE WOULD BE ABLE TO EASILY ID ENTIFY THE SIGNATURE AND THE HAND WRITING OF HIS STAFF BUT SINCE IT WAS NOT OF HIS EMPLOYEES, HE ASSERTED THIS FACT. IT IS FURTHER ASSERTED IN THE AFFIDAVIT BY THE PARTNER OF LLP THAT NEITHER THE NOTICE DATED MARCH 18, 2013 NOR THE NOTICE DATED MARCH 25/26, 2013 WAS SERVED ON ANY PE RSON CONNECTED OR EMPLOYED WITH THE 13 ITA NO. 1543/KOL/2013 M/S. BROLLY DEALCOM PVT. LTD., AY 2008-09 LLP AND, THEREFORE, THE ORDER PASSED BY LD. PR. CIT U/S. 263 DATED MARCH 28, 2013 WAS PASSED WITHOUT AFFORDING ANY OPPORTUNITY TO THE LLP . MOREOVER, IT WAS BROUGHT TO OUR NOTICE THAT SHRI SUSHANTA KUMAR PARIDA, EX- DIRECTO R OF THE DISSOLVED/DEFUNCT PRIVATE LIMITED COMPANY HAS ALSO STATED IN THE AFFIDAVIT T HAT 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 T HE 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 AFFOR DING 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 U PON 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 W ITH SEAL OF LLP, RATHER THAN SCRIBBLING INCOMPLETE ADDRESS AND SIGNATURE OF AN ANONYMOUS PE RSON, WHICH DOES NOT INSPIRE CONFIDENCE AS TO SERVING OF REMINDER LETTER DATED 2 5/26.03.2013 AT PRINCEP STREET ADDRESS OF LLP. THIS FAILURE OF NOT HAVING THE TEAR OFF SLIP ON THE FILE OF PR. CIT MAKES THE SCRIBBLING OF PRINCEP STREET TO BE NON-GENUINE AND CANNOT IN A NYWAY CONTROVERT THE SWORN AFFIDAVIT OF PARTNER OF LLP AND EX DIRECTOR OF COMPANY. MOREOVER , THE ERSTWHILE DIRECTOR OF COMPANY AND PARTNER OF LLP, ON SWORN AFFIDAVITS HAS DENIED THE RECEIPT OF THE REMINDER NOTICE DATED 25/26.03.2013 FIXING THE CASE ON 28.03.2013, WHICH FACT HAS NOT BEEN CONTROVERTED BY THE REVENUE BY ADDUCING ANY AFFIDAVIT OF PROCESS-SERVER OF THE DEPARTMENT OF SERVING THE SCN ON 26.03.2013 TO THE LLP/COMPANY AT ITS PRINCE STR EET AND MOST IMPORTANT EXPLAINING AS TO WHY IS THE TEAR OF ACKNOWLEDGMENT SLIP. WAS NOT USED WHILE SERVING OF NOTICE WHICH REFLECTS COMPLETE PROPER ADDRESS, ALONG WITH THE RE CIPIENTS SEAL OF LLP/COMPANY AND DATE WRITTEN ON IT AND DETAILS OF WHO RECEIVED IT. SO, IN THE ABSENCE OF COMPLETE TEAR OFF 14 ITA NO. 1543/KOL/2013 M/S. BROLLY DEALCOM PVT. LTD., AY 2008-09 ACKNOWLEDGEMENT SLIP AS DISCUSSED, WE ARE NOT PERS UADED TO ACCEPT THAT THE PRIVATE LIMITED COMPANY OR THE LLP RECEIVED THE REMINDER SCN DATED 25/26.03.2016 AT ITS PROPER PRINCE STREET ADDRESS. 13. ON BEHALF OF THE REVENUE, RELIANCE HAS BEEN PL ACED ON TWO MORE DOCUMENTS TO PROVE SERVICE OF NOTICE. ONE OF THE DOCUMENTS RELIED UPON BY THE REVENUE IS A TEAR OFF ACKNOWLEDGEMENT SLIP MENTIONING THE NAME OF THE COMPANY WITH ADDRESS AT G.C. AVENUE FOR THE PURPOSE OF SERVICE OF THE ORDER DATED MARCH 28, 2013 UNDER SECTION 263. THE SAID TEAR OFF ACKNOWLEDGEMENT SLIP BEARS THE SEAL (UNCLE AR) BUT THE NAME OF COMPANY IS ALL IN CAPITAL LETTER (WHICH IS DIFFERENT FROM THE SEAL ON THE FIRST ACKNOWLEDGMENT TEAR OFF DATED 20.03.2013 WHEREIN ALL LETTERS ARE NOT CAPITAL) OF THE COMPANY AND IS SIGNED BY SHRI SUSHANTA KUMAR PARIDA ON MARCH 31, 2013 AS DIRECTOR [ HEREIN AFTER REFERRED AS SECOND TEAR OFF ACKNOWLEDGEMENT SLIP ]. THE QUESTION BEFORE US IS AS TO WHETHER ANY NOTI CE OF HEARING WAS SERVED BEFORE THE IMPUGNED ORDER WAS PASSED ON 28.03.2013 AND NOT ABOUT SERVICE OF THE ORDER. THE COMPANY HAD ITS REGISTERED OFFICE AT G.C. AVENUE TILL OCTOBER 8, 2009. FROM OCTOBER 9, 2009 THE REGISTERED OFFICE WAS AT 9/1, R .B.C. ROAD THEREAFTER FROM 17.05.2010 IT SHIFTED ITS OFFICE TO ROOM NO. 24, 3 RD FLOOR, P-103, PRINCEP STREET, KOLKATA-700072. AFTE R CONVERTING AS AN LLP ITS REGISTERED OFFICE CONTINUE D AT ROOM NO. 24, 3RD FLOOR, P-103, PRINCEP STREET, KOLKATA-700072 WHICH IS THE REGISTE RED 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 AUTHORIS ED TO RECEIVE ANY COMMUNICATION ADDRESSED TO THE COMPANY. EXPLAINING HOW THE ERSTWH ILE 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 INCOM E TAX, KOLKATA II THAT A REPRESENTATIVE OF THE COMPANY SHOULD ATTEND THE INCOME TAX DEPARTM ENT ALONG WITH THE COMPANY'S SEAL TO COLLECT COPY OF THE ORDER UNDER SECTION 263. AND PU RSUANT TO THAT DIRECTION, HE ACCORDINGLY 15 ITA NO. 1543/KOL/2013 M/S. BROLLY DEALCOM PVT. LTD., AY 2008-09 INFORMED SHRI SUSHANTA KUMAR PARIDA. AND SHRI SUSH ANTA 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 LONGER IN EXISTENCE AND WAS CONVERTED INTO A LIMITED LIABILITY PARTNERSHIP IN JANUARY, 2011 AND THAT HE WAS NO LONGER A DIRECTOR OF THE CO MPANY. UPON INSISTENCE OF THE OFFICER CONCERNED, HE RECEIVED THE IMPUGNED ORDER AND ACKNO WLEDGED RECEIPT ON THE TEAR OFF ACKNOWLEDGEMENT SLIP. WE NOTE THAT THE REVENUE HAS NOT CONTROVERTED THE AFORESAID ASSERTIONS MADE BY SHRI UDAYA KUMAR SENAPATI AND SH RI SUSHANTA KUMAR PARIDA IN THE SWORN AFFIDAVITS FILED BEFORE US, WHICH WAS THEIR C ONSISTENT STAND IN THE FIRST ROUND OF LITIGATION BEFORE US AND THE HONBLE HIGH COURT, SO WE ACCEPT THE EXPLANATION GIVEN IN THE AFFIDAVITS FOR THE REASONS SUPRA. 14. COMING TO THE POWER OF ATTORNEY EXECUTED BY SH RI SUSHANTA KUMAR PARIDA AS DIRECTOR OF THE COMPANY IN FAVOUR OF SHRI UDAYA KUM AR SENAPATI AND SHRI S. KARMAKAR OF M/S. G.K. TULSYAN & CO., CHARTERED ACCOUNTANTS. SHR I SUSHANTA KUMAR PARIDA IN HIS AFFIDAVIT HAS STATED THAT THE SAID POWER OF ATTORNE Y WAS SIGNED BY HIM WITH THE COMPANY'S SEAL AND MADE OVER TO M/S G.K. TULSYAN & CO. SUBSEQ UENT TO THE RECEIPT OF THE ORDER UNDER SECTION 263 DATED MARCH 28, 2013, SO THAT THE SAID CHARTERED ACCOUNTANT FIRM WAS EMPOWERED TO APPROACH THE OFFICE OF THE COMMISSIONE R OF INCOME TAX, KOLKATA II TO ASCERTAIN THE CIRCUMSTANCES UNDER WHICH THE ORDER D ATED MARCH 28 2013 WAS PASSED EX PARTE. SHRI UDAYA KUMAR SENAPATI, PARTNER OF M/S G. K. TULSYAN & CO. (CHARTERED ACCOUNTANT) IN HIS AFFIDAVIT HAS ALSO CORROBORATED THIS FACT. THE EXPLANATION GIVEN BY THE LD. AR OF ADOPTING SUCH COURSE OF ACTION DESPITE DISSOL UTION OF THE COMPANY WAS BECAUSE THE INCOME TAX DEPARTMENT NOTICING THAT THE IMPUGNED OR DER WAS PASSED AGAINST THE PRIVATE LIMITED COMPANY INSISTED THAT POWER OF ATTORNEY FRO M COMPANY WITH COMPANYS SEAL AFFIXED ON IT TO C.A BE GIVEN, THEN ONLY THEY WOULD BE PERMITTED TO PURSUE ON THE QUERIES IN RESPECT OF THE IMPUGNED ORDER EX-PARTE PASSED AGAIN ST M/S. BROLLY DEALCOM PRIVATE LIMITED. WE NOTE THAT IN THE ORDER DATED MARCH 28, 2013 PASS ED BY THE COMMISSIONER UNDER SECTION 16 ITA NO. 1543/KOL/2013 M/S. BROLLY DEALCOM PVT. LTD., AY 2008-09 263 IT IS EXPRESSLY RECORDED THAT NONE APPEARED AND THAT THERE WAS NO COMPLIANCE FROM THE PART OF ASSESSEE AND SO THE ORDER WAS BEING PASSED EX PARTE. IT IS THUS CLEAR TO US THAT THE POWER OF ATTORNEY WAS NOT FILED IN COURSE OF THE PR OCEEDINGS UNDER SECTION 263 AND THE STAND OF THE EX-DIRECTOR OF COMPANY AND WHICH WAS C ORROBORATED BY THE CA IN THE SWORN AFFIDAVITS THAT IT WAS EXECUTED AFTER RECEIPT OF TH E 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 T HE 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-70007 2. THE PERSON WHO AFFIXED HIS SIGNATURE ACKNOWLEDGING RECEIPT OF THE COMMUNICATION DATED MA RCH 25/26, 2013 IS UNIDENTIFIED AND THERE IS NOTHING TO SHOW THAT THE ACKNOWLEDGEMENT R ECEIPT SCRIBBLED IN RESPECT OF THE COMMUNICATION DATED MARCH 25/26, 2013 IS OF ANY PER SON/AUTHORISED PERSON OF THE COMPANY OR LLP. 16. AS PER SECTION 282 OF THE ACT, NOTICE MAY BE S ERVED BY POST, BY APPROVED COURIER SERVICE OR IN SUCH MANNER AS PROVIDED UNDER THE COD E 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 SPE CIFIED IN THE RULES IS NOT MATERIAL IN THE INSTANT CASE. RULE 127 CAME INTO EFFECT MUCH LATER ON DECEMBER 2, 2015. IT IS NOT THE CASE OF THE DEPARTMENT THAT THE NOTICE WAS SENT BY POST OR BY ANY APPROVED COURIER SERVICE. THUS, THE QUESTION IS WHETHER SERVICE WAS MADE IN THE MAN NER AS PROVIDED UNDER THE CODE OF CIVIL PROCEDURE, 1908. IN RESPECT OF SUITS BY OR AGAINST A CORPORATION, ORDER 29 RULE 2 OF THE CODE OF CIVIL PROCEDURE PROVIDES THAT SUBJECT TO ANY STA TUTORY PROVISION REGULATING SERVICE OF PROCESS, WHERE THE SUIT IS AGAINST A CORPORATION, T HE SUMMONS MAY BE SERVED ON THE SECRETARY OR ON ANY DIRECTOR OR OTHER PRINCIPAL OFF ICER OF THE CORPORATION OR BY LEAVING IT OR 17 ITA NO. 1543/KOL/2013 M/S. BROLLY DEALCOM PVT. LTD., AY 2008-09 SENDING IT BY POST ADDRESSED TO THE CORPORATION AT THE REGISTERED OFFICE OR IF THERE IS NO REGISTERED OFFICE THEN AT THE PLACE WHERE THE CORPO RATION CARRIES ON BUSINESS. WHERE THE SUIT IS BY OR AGAINST A FIRM, ORDER 30 RULE 3 OF THE COD E OF CIVIL PROCEDURE PROVIDES THAT SUMMONS SHALL BE SERVED EITHER UPON ANYONE OR MORE OF THE PARTNERS OR AT THE PRINCIPAL OFFICE AT WHICH THE PARTNERSHIP BUSINESS IS CARRIED ON UPON ANY PERSON HAVING, AT THE TIME OF SERVICE, THE CONTROL OR MANAGEMENT OF THE PARTNERSH IP BUSINESS THERE. IF THE MATTER IS LOOKED AT REFERENCE TO THE COMPANY WHICH WAS CONVERTED INT O LLP ON JANUARY 19, 2011, THERE IS NOTHING TO SHOW THAT ANY NOTICE WAS SERVED ON ANY S ECRETARY OR DIRECTOR OR PRINCIPAL OFFICER OR THAT ANY NOTICE WAS LEFT AT OR SENT BY POST TO T HE REGISTERED OFFICE VIZ. ROOM NO. 24, 3RD FLOOR, P-103, PRINCEP STREET, KOLKATA-700072. IF TH E MATTER IS LOOKED AT WITH REFERENCE TO LLP, THERE IS NOTHING TO SHOW THAT ANY NOTICE WAS S ERVED UPON ANY PARTNER OR UPON ANY PERSON HAVING THE CONTROL OR MANAGEMENT OF THE PART NERSHIP BUSINESS AT ROOM NO. 24, 3RD FLOOR, P-103, PRINCEP STREET, KOLKATA-700072. IN TH E FACTS AND CIRCUMSTANCES OF THE INSTANT CASE, IT CANNOT AT ALL BE SAID THAT ANY NOTICE WAS SERVED IN THE MANNER AS PROVIDED UNDER THE CODE OF CIVIL PROCEDURE. 17. IT IS CLEAR THAT THERE HAS BEEN VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE BECAUSE NO OPPORTUNITY WHATSOEVER WAS AFFORDED TO THE APPELLAN T BEFORE THE ORDER UNDER SECTION 263 WAS PASSED. CARE WAS NOT TAKEN TO FIND OUT FROM T HE 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 HEARING SHOULD HAVE BEEN GIVEN TO ROOM NO. 24, 3 RD FLOOR, P-103, PRINCEP 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 I N THE RECORDS. THE NOTICES TO THE COMPANY WERE NOT SENT TO OR SERVED AT THE LAST KNOW N 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 THA T THE APPELLANT HAD NO NOTICE OF THE PROCEEDINGS UNDER SECTION 263. IN SUCH CIRCUMSTANCE S, THE ORDER DATED MARCH 28, 2013 PASSED UNDER SECTION IS BAD IN LAW. 18 ITA NO. 1543/KOL/2013 M/S. BROLLY DEALCOM PVT. LTD., AY 2008-09 18. THE FOLLOWING CASE LAWS WERE BROUGHT TO OUR NOT ICE : (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 BEIN G HEARD- FAIR MARKET VALUE- NOTICE OF HEARING GAVE ONLY FIVE DAYS TO THE PARTIE S TO RESPOND WHICH INCLUDED THE WEEKEND-SAME INADEQUATE-NOTICE ALLEGED THAT THE APP ARENT CONSIDERATION OF THE TRANSACTION WAS LOW AS COMPARED TO SALE INSTANCES M ENTIONED THEREIN-NO COPY OF ANY DOCUMENT RELATING TO THE SALE INSTANCE WAS FURNISHE D BY THE APPROPRIATE AUTHORITY TO THE APPELLANT-TRANSFEREE ALONG WITH THE NOTICE OR A T ANY TIME WHATSOEVER-THERE WAS GROSS BREACH OF THE PRINCIPLES OF NATURAL JUSTICE O N BOTH COUNTS-MATTER CANNOT BE REMANDED TO THE APPROPRIATE AUTHORITY-IMPUGNED ORDE R QUASHED' (II) HON'BLE HIGH COURT OF CALCUTTA, IN THE CASE OF RAMENDRA NATH GHOSH VS CIT IN 66 ITR 414 'REVISION - OPPORTUNITY OF BEING HEARD-NOTICE-WHERE NOTICE SENT BY POST WAS SERVED LONG AFTER THE DATE OF HEARING AND THE SERVICE BY A FFIXTURE WAS EFFECTED AT A HOUSE WHICH WAS NOT THE RESIDENCE OF THE ASSESSEE AND THE COMPANY OCCUPYING THE SAID HOUSE WITH WHICH THE ASSESSEE WAS CONNECTED HAD GON E INTO LIQUIDATION BEFORE THE AFFIXTURE, PROPER OPPORTUNITY OF HEARING CANNOT BE SAID TO HAVE BEEN AFFORDED TO THE ASSESSEE' (III) HON'BLE HIGH COURT OF MADRAS IN THE CASE OF K IRAN MACHINES VS ITO IN 203 CTR 574 'SECTION 282, OF THE INCOME-TAX ACT, 1961, READ WIT H ORDER V, RULE 20, OF THE CODE OF CIVIL PROCEDURE, 1908 - SERVICE OF NOTICE - GENERAL - ITO ISSUED A SHOW-CAUSE NOTICE TO ASSESSEE AND PROPOSED TO DISALLOW INTEREST OF CERTAIN SUM - ASSESSEE GAVE NO REPLY TO SAID NOTICE - ITO, THEREAFTER, PASSED AN ASSESSMENT ORDER BY LEVYING T AX THEREON - THEREAFTER, ITO SERVED A NOTICE OF PERSONAL HEARING UNDER SECTION 282 ON CHA RTERED ACCOUNTANT OF ASSESSEE BY AFFIXING ASSESSMENT ORDER ALONG WITH IT AT PLACE OF BUSINESS OF ASSESSEE WHICH WAS NOT FUNCTIONAL - ASSESSEE CO ENDED THAT NO OPPORTUNITY WAS GIVEN TO HIM TO SUPPORT HIS CLAIM AND IF NOTICE HAD BEEN SERVED ON HIM PERSONALLY, HE WOULD HAVE APPEAR ED AND SUBMITTED HIS OBJECTIONS, HENCE, PROCEEDINGS SHOULD BE QUASHED - WHETHER SINCE ITO H AD NOT RECORDED SATISFACTION IN HIS ORDER BEFORE CAUSING SERVICE OF NOTICE BY AFFIXTURE AND F URTHER, AS PER ORDER V, RULE 20 OF 1908 CODE, ITO COULD HAVE ORDERED PAPER PUBLICATION IF ADDRESS OF ASSESSEE WAS NOT KNOWN, IN SAID CIRCUMSTANCES, IT COULD BE SAID THAT NO PROPER NOTI CE HAD BEEN SERVED ON ASSESSEE AND THERE WAS DENIAL OF PRINCIPLE OF NATURAL JUSTICE TO ASSES SEE AS HE WAS NOT ABLE TO EFFECTIVELY 19 ITA NO. 1543/KOL/2013 M/S. BROLLY DEALCOM PVT. LTD., AY 2008-09 PARTICIPATE IN ASSESSMENT PROCEEDINGS AND PUT FORTH HIS OBJECTION - HELD, YES - WHETHER, THEREFORE, IMPUGNED PROCEEDINGS OF ITO WERE LIABLE TO BE QUASHED - HELD, YES (IV) HON'BLE HIGH COURT OF ALLAHABAD IN THE CASE OF CIT VS DR. AJAY PRAKASH IN 226 TAXMAN 71 'SECTION 292BB, READ WITH SECTIONS 148 AND 282 OF T HE INCOME-TAX ACT, 1961 - NOTICE - DEEMED TO BE VALID IN CERTAIN CIRCUMSTANCES (COND ITIONS PRECEDENT) - ASSESSMENT YEAR 1998-99 - ASSESSING OFFICER ISSUED NOTICE TO A SSESSEE 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 EMPLOYE E OF ASSESSEE WAS NOT AUTHORIZED TO RECEIVE NOTICE - TRIBUNAL THUS OPINED THAT PRESU MPTION 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 THEREFRO M - HELD, YES [PARA 7] [IN FAVOUR OF ASSESSEE]' (V) HON'BLE HIGH COURT OF MADRAS IN THE CASE OF GRE EN POWER REALTORS PVT. LTD. VS DCIT 216 TAXMAN 169 'SECTION 143 OF THE INCOME-TAX ACT, 1961 - ASSESSME NT - ISSUE OF NOTICE [TIME OF ISSUE OF NOTICE] - ASSESSMENT YEAR 2005-06 - WHE THER, REVENUE AUTHORITY HAS TO AFFORD AN OPPORTUNITY OF HEARING TO ASSESSEE IN ACCORDANCE WITH LAW, BEFORE PROCEEDING TO PASS AN ASSESSMENT ORDER - HEL D, YES - WHETHER, THEREFORE, WHERE NOTICE UNDER SECTION 143(2) WAS DI SPATCHED TO ASSESSEE ONLY AFTER DATE FIXED FOR HEARING, THERE WAS DENIAL OF R EASONABLE OPPORTUNITY OF HEARING TO ASSESSEE AND, IN SUCH A CASE, IMPUGNED O RDER PASSED BY REVENUE AUTHORITY WAS NOT SUSTAINABLE AS IT VIOLATED PRINCI PLES OF NATURAL JUSTICE - HELD, YES [PARA 8] [IN FAVOUR OF ASSESSEE]' (VI) HON'BLE HIGH COURT OF DELHI; IN THE CASE OF CI T VS RAJESH KUMAR SHARMA IN 311 TAXMAN 235 'NOTICE -SERVICE BY PROCESS SERVER/SPEED POST-VALID ITY OF SERVICE-NOTICE UNDER S. 148 WAS RECEIVED BY L, AN EMPLOYEE OF THE ASSESSEE-THER E IS NOTHING TO SUGGEST THAT L WAS IN ANY MANNER AUTHORISED TO RECEIVE ANY SUMMONS ON BEHALF OF THE ASSESSEE-THUS, IT CANNOT BE HELD THAT THE RECEIPT OF NOTICE BY L AMOU NTED TO SERVICE OF NOTICE ON THE ASSESSEE- NOTICE WAS ALSO SENT TO THE ASSESSEE BY S PEED POST BUT THE SAME WAS NOT CORRECTLY ADDRESSED-REVENUE HAS NOT DISCHARGED THE BURDEN OF SHOWING THAT THE ENVELOPE WAS ADDRESSED TO THE CORRECT PERSON BUT TH E RECEIPT PREPARED BY THE POSTAL 20 ITA NO. 1543/KOL/2013 M/S. BROLLY DEALCOM PVT. LTD., AY 2008-09 DEPARTMENT WAS INCOMPLETE-CONTENTION OF THE REVENUE THAT THE ENVELOPE WAS NOT RETURNED WITH ANY REMARK TO THE EFFECT THAT IT WAS UNDELIVERED AND THUS IT MUST BE PRESUMED THAT IT WAS ACTUALLY SERVED UPON THE ASSES SEE CANNOT BE ACCEPTED BECAUSE OF THE CATEGORICAL STAND OF THE ASSESSEE THAT HE HAS N OT RECEIVED THE NOTICE- SUCH A PRESUMPTION COULD BE MADE ONLY IF THE NOTICE WAS DE SPATCHED TO THE CORRECT ADDRESS- ALSO, THE FACT THAT THE ASSESSEE PRESENTED HIMSELF BEFORE THE AO DOES NOT ADVANCE THE CASE OF THE REVENUE-ASSESSEE APPEARED BEFORE THE AO IN RESPONSE TO A NOTICE UNDER SS. 142(1) AND 143(2) AND NOT PURSUANT TO THE NOTIC E UNDER S. 148-MOREOVER, ASSESSEE ENTERED APPEARANCE AND FILED HIS RETURN UNDER PROTE ST MAKING IT ABUNDANTLY CLEAR THAT HE HAS NOT RECEIVED THE NOTICE UNDER S. 148- THEREF ORE, THERE WAS NO VALID SERVICE OF NOTICE UNDERS.148' (VII) THE CUTTACK BENCH OF TRIBUNAL IN THE CASE OF PRAHALAD MOHARANA VS ACIT IN [2018] 69 TAXMANN.COM 354 'SECTION ASSESSMENT143 OF THE INCOME-TAX ACT, 1961 - ASSESSMENT - ISSUE OF NOTICE (NOTICE UNDER SECTION 143(2) - ASSESSMENT YEAR 2009 -10 - WHERE SERVICE OF NOTICE WAS MADE ON A WRONG PERSON, WHO WAS NOT RELATED TO ASSE SSEE, SERVICE OF NOTICE WAS NOT VALID AND ASSESSMENT SO MADE TO BE QUASHED [IN FAVO UR OF ASSESSEE]' (VIII) THE DELHI BENCH OF TRIBUNAL IN THE CASE OF S HRI CHETAN GUPTA VS ACIT IN 144 ITD 344 'REASSESSMENT-NOTICE-NON-SERVICE OF NOTICE U/S 148- FOR VALID ASSUMPTION OF JURISDICTION TO FRAME A REASSESSMENT, A PROPER AND VALID SERVICE OF NOTICE U/S 148 ON ASSESSEE IS MANDATORY REQUIREMENT; VIOLATION THEREO F 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 RETU RN OF INCOME-DEPARTMENT ALSO ADMITS THAT NOTICE WAS SERVED NOT ON ASSESSEE BUT O N 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 CONTENT ION THAT V WAS NEITHER HIS EMPLOYEE NOR HIS AUTHORIZED AGENT, REMAINS UNCONTROVERTED-DE PARTMENT 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 B ANWARILAL BHARTIYA VS ITO IN 4 SOT 311 21 ITA NO. 1543/KOL/2013 M/S. BROLLY DEALCOM PVT. LTD., AY 2008-09 'SECTION 144 READ WITH SECTION 143(2), OF THE INCOM E-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 ASSESSMENT - HELD, YES - WHETHER WHERE NOTICE UNDER SECTION 143(2) WAS NEI THER SENT AT ASSESSEE'S ADDRESS AT JAIPUR NOR SERVED UPON HIM, ASSESSMENT O RDER FRAMED BY ASSESSING OFFICER UNDER SECTION 144 IN VIOLATION OF PRINCIPLE S OF NATURAL JUSTICE WAS TO BE DECLARED AS BAD IN LAW AND LIABLE TO BE QUASHED - HELD, YES' (X) THE AMRITSAR BENCH OF THE TRIBUNAL IN THE CASE OF RAJAN CHOPRA VS DDIT IN 165 ITD 361 'SECTION 184, READ WITH SECTION CONSEQUENCES OF FAI LURE TO DEDUCT OR PAY 201, OF THE INCOME-TAX ACT, 1961 AND SECTION 18 OF THE P ARTNERSHIP ACT, 1932 - FIRM - ASSESSED AS SUCH (LIABILITY OF PARTNERS) A SSESSMENT YEAR 2006-07 - WHETHER NOTICE TO A FIRM IS TO BE ISSUED THROUGH A PARTNER IN HIS CAPACITY AS A PARTNER OF FIRM, AND NOT AS AN INDIVIDUAL - HE D, Y ES - WHETHER A NOTICE SERVED ON A PARTNER IN HIS INDIVIDUAL CAPACITY FOR HIS OMI SSION AS A PARTNER OF HIS FIRM IS NOT A NOTICE IN EYE OF LAW - HELD, YES - PA RTNERSHIP FIRM, IN WHICH ASSESSEE WAS A PARTNER, PURCHASED LAND FROM AN NRI, BUT FAILED TO DEDUCT TAX AT SOURCE ON PAYMENT MADE TO HIM - ASSESSING OFFICE R ISSUED NOTICES UNDER SECTION 201(1) AND 201(1A) TO ONE OF PARTNERS OF FI RM I.E., ASSESSEE IN HIS INDIVIDUAL CAPACITY - WHETHER SUCH NOTICES WERE VOI D AB INITIO - HELD, YES [PARA 4] [IN FAVOUR OF ASSESSEE]' 19. IN THE LIGHT OF THE AFORESAID FACTS AND CIRCUMS TANCES, WE NOTE THE GIST OF CASE THAT ASSESSEES STATUS FROM A PRIVATE LIMITED COMPANY HA S BEEN CONVERTED TO LLP ON 19.01.2011 AND THEREBY THE PRIVATE LIMITED COMPANY WAS DISSOLV ED UPON ITS ASSETS AND LIABILITIES BEING TAKEN OVER AS A GOING CONCERN BY THE APPELLANT HER EIN AS A LIMITED LIABILITY PARTNERSHIP IN THE NAME AND STYLE OF M/S. BROLLY DEALCOM LLP. AFTE R THE CONVERSION ON 19.01.2019, THE PRIVATE LIMITED COMPANY IS NO LONGER EXISTING IN TH E EYES OF LAW AND IS NON EST IN THE EYES OF LAW AS A CORPORATE ENTITY FROM 19.01.2011. THIS FACT HAS BEEN BROUGHT TO THE NOTICE OF THE ITO, WARD-5(4) WHO WAS THE AO OF THE ERSTWHILE PRIV ATE LIMITED COMPANY (M/S BROLLY DEALCOM PVT. LTD.) (PAN: AADCB1699Q) BY LETTER DATE D 16.04.2012 WHICH HAS BEEN RECEIVED BY THE SAID AO ON 16.04.2011[SUPRA]. THE FIRST SHOW CAUSE NOTICE OF PR. CIT IS 22 ITA NO. 1543/KOL/2013 M/S. BROLLY DEALCOM PVT. LTD., AY 2008-09 DATED 18.03.2013 WHICH IS ADDRESSED TO THE PRIVATE LIMITED COMPANY IN THE ADDRESS 16, G. C. AVENUE, KOLKATA-700 013 AS WELL AS 9/1, R. B. C . ROAD, KOLKATA-700 028 AND THE REMINDER IS SENT AFTER SEVEN DAYS ON 25/26.03.2013 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, 3 RD 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 BLA NK 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 ORD ER AND NOT BEFORE THAT; AND LIKEWISE POWER OF ATTORNEY TO CHARTERED ACCOUNTANTS WERE AFT ER THE PASSING OF THE IMPUGNED ORDER AND THUS AND BOTH THE TEAR OFF ACKNOWLEDGEMENT SLIP S 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 DISSO LVED COMPANY/LLP AT PRINCE STREET. THUS, WE FIND THAT NO NOTICE OF THE SEC. 263 PROCEEDING H AS BEEN BROUGHT TO THE KNOWLEDGE OF THE ASSESSEE [DISSOLVED COMPANY] AT ITS LAST PROPER ADD RESS OF THE DISSOLVED COMPANY AT PRINCE STREET THEREBY IT COULD HAVE BEEN SAID THAT SUCCES SOR-IN-INTEREST LLP HAD KNOWLEDGE ABOUT THE PROCEEDINGS GOING ON BEFORE THE LD PR CIT U/S 2 63 OF THE ACT OR BEFORE THE IMPUGNED ORDER WAS PASSED BY THE LD. PR. CIT U/S. 263 OF THE ACT. DESPITE DEPARTMENT KNOWING THE LAST PROPER ADDRESS OF DISSOLVED COMPANY AT PRINCEP STREET NO NOTICE WAS ISSUED TO ITS PROPER ADDRESS OR SUCCESSOR-IN-INTEREST LLP AND, THEREFO RE, NO OPPORTUNITY OF HEARING WAS GIVEN TO THE ASSESSEE BEFORE PASSING THE ORDER U/S. 263 OF T HE ACT. SO SINCE THERE WAS DENIAL OF REASONABLE OPPORTUNITY OF HEARING TO ASSESSEE THERE IS A VIOLATION OF NATURAL JUSTICE AND, THEREFORE, THE IMPUGNED ORDER OF THE LD. CIT U/S. 2 63 OF THE ACT IS HELD TO BE FRAGILE FOR VIOLATION OF NATURAL JUSTICE AS HELD BY HONBLE SUP REME COURT IN CIT VS AMITABH BACHAN 23 ITA NO. 1543/KOL/2013 M/S. BROLLY DEALCOM PVT. LTD., AY 2008-09 CIVIL APPEAL NO. 5009 OF 2016, AND THEREFORE CANNOT BE SUSTAINED. SO, THEREFORE, THE APPEAL OF THE ASSESSEE IS ALLOWED. 20. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 1ST FEBRUA RY, 2019. SD/- SD/- (DR. A. L. SAINI) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 1ST FEBRUARY, 2019 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 APPELLANT M/S. BROLLY DEALCOM LLP (FORMERLY M/S. BROLLY DEALC OM PVT. LTD.), SHRI S. K. PARIDA, C/O, G. K. TULSYAN & CO., 4, GANGADHAR BABU LANE (4 TH FLOOR), KOLKATA-12. 2 RESPONDENT I.T.O. WARD-5(4), KOLKATA. 3 4 CIT - II, KOLKATA. DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR