Judgment :- 1. Heard Dr.Anita Sumanth, learned counsel for the petitioner and Mr.T.Pramod Kumar Chopda, learned Senior Standing Counsel appearing for the respondent. 2. The petitioner-Company calls in question the order dated 20.3.2013 passed by the respondent in PAN/GIR No.AABCG3714B, relating to Assessment Year 2005-06, seeking to quash the same. 3. Brief facts pleaded by the petitioner are as follows: (a) The petitioner is a Company incorporated in 2000 and engaged in the business of Real Estate including development of the same. They entered into an agreement with M/s.Chaitanya Builders for sale of certain property. The purchase of the property was solely funded by an entity, namely M/s.Wescare (India) Ltd. The proposed purchaser M/s.Chaitanya Builders defaulted in effecting payments, resulting in filing of O.A.No.465 of 2004 before this Court and during the pendency of the proceedings, the parties came to a negotiated settlement and entered into a Deed of Compromise, whereby the proposed purchaser agreed to pay a demarcated sum of compensation. M/s.Wescare (India) Ltd. being the sole funder, the entire agreement including the receivable, comprising of monies including compensation, was assigned to M/s.Wescare (India) Ltd. The amount of compensation receivable by the petitioner, had been paid directly to the entity, namely M/s.Wescare (India) Ltd. which funded for the purchase of the land entirely. Accordingly, the transaction resulted in no profits or income accruing to the petitioner in terms of which it would be liable to tax. (b) The petitioner maintains full and complete documentation, in which details of the above transaction were set out. All remittances in connection with the above transaction had been effected only through normal banking channels. Inasmuch as no income had accrued or arisen to the petitioner by means of the above transaction, the petitioner was advised that there was no liability to file a Return of Income in terms of the provisions of the Income Tax Act (for short, 'the I.T. Act'). Section 139 of the I.T. Act dealing with the furnishing of a Return, would come into play only in the event of Section 5 of the I.T. Act getting attracted. Section 5 being the charging Section, includes within the scope of total income, all income that has been received or was deemed to have been received in India or accrued or arisen or was deemed to have accrued or arisen outside India. Section 5 being the charging Section, includes within the scope of total income, all income that has been received or was deemed to have been received in India or accrued or arisen or was deemed to have accrued or arisen outside India. The provisions of Section 5 are not attracted in respect of the petitioner's transaction. (c) The petitioner received a notice of re-assessment under Section 148 of the I.T. Act, dated 27.3.2012 in respect of the Assessment Year 2005-06, in compliance of which, the petitioner filed a Return of Income, dated 5.12.2012 enclosing complete financial statements and connected documents and the said Return of Income had been filed indicating the address of the Registered Office of the petitioner-Company, namely No.16, Cenatoph Road, Chennai-600 18. (d) The petitioner thereafter received a notice under Section 143(2) of the I.T. Act, calling upon them to furnish some information in connection with the Return of Income and the authorised representative of the petitioner-Company appeared before the respondent and explained/clarified all the issues raised by the respondent. (e) Subsequently, on 20.3.2013, the petitioner received another notice, dated 7.3.2013, addressed to No.7, 11th Avenue, Ashok Nagar, Chennai-83, when the respondent is aware of the address of the Registered Office of the petitioner-Company, i.e. No.16, Cenatoph Road, Chennai-18. The respondent on the earlier occasions, had been corresponding with the petitioner-Company only at the Registered Office address. The respondent deliberately corresponded with an erroneous address merely to deny the petitioner an opportunity of responding to the same. The Postal mark on the cover makes it clear that the cover itself was posted only on 16.3.2013, when the notice is dated 7.3.2013, fixing the date of hearing of the case as 14.3.2013. Immediately on receipt of this notice, the petitioner addressed a letter to the respondent on 20.3.2013 bringing it to their notice that the notice under Section 143(2), dated 7.3.2013, posting the matter for hearing on 14.3.2013, was received by the petitioner only on 20.3.2013 and this letter of the petitioner was received by the respondent on 21.3.2013 and the respondent admitted the position that the notice had been issued belatedly and that a fresh notice would be issued posting the matter for hearing afresh. (f) The petitioner under the bona-fide belief, was waiting for a notice of hearing and to their shock, they received an order of assessment passed under Section 143(3) read with Section 147 of the I.T. Act without reference to the specific request of the petitioner for grant of opportunity and the said order is passed in gross violation of the principles of natural justice and it is contrary to the provisions of law. (g) The scheme of the I.T. Act provides that on filing of Return of Income in terms of Section 139, the same is to be proceed in the manner set out in terms of Section 143, which deals with the procedures for assessment. A notice under Section 143(2) being a mandatory pre-condition to the completion of an assessment under Section 142(3), is to be issued by the Assessing Officer in all situations where the Assessing Officer considers it necessary to ensure that the assessee has reported the correct income liable to tax and to afford an opportunity to the assessee to attend his office and produce evidence in respect of the issues arising in its Return of Income. Insofar as the notice issued subsequent to the date of hearing stated therein, the Assessing Officer deprived the assessee an opportunity required to be given prior to the framing of the assessment. Even assuming that the notice had been issued prior to the date of hearing, but had been received by the assessee subsequent thereto on account of postal or logistical delays, even then, the completion of assessment without granting an opportunity to the assessee, would amount to gross violation of the principles of natural justice. The respondent chosen to ignore the request of the petitioner seeking opportunity prior to completion of assessment and proceeded to complete the assessment, thereby, the basic requirement under the I.T. Act has not been fulfilled by the respondent. (h) The impugned order of assessment for reopening of assessment on the basis of escapement of income, is contrary to law, insofar as the reasons for reopening the assessment have not been provided to the petitioner at any time during the assessment proceedings and the same are brought to the knowledge of the petitioner only on receipt of the impugned order of assessment. The petitioner has not been furnished with a copy of the Survey Report of the Deputy Director of Income Tax (Investigations) relied on by the respondent while passing the impugned order. (i) The petitioner was incorporated as a Special Purchase Vehicle to pursue opportunities in Real Estate and owing to the paucity of funds which are required to engage in the business pursuits of purchase and sale of land and land development, M/s.Wescare (India) Ltd. solely financed them and the said M/s.Wescare (India) Ltd. was engaged primarily in the area of wind energy development and the operation and maintenance of wind farms and they availed of a term loan from Indian Renewable Energy Development Agency (IREDA) for the purpose of establishing a wind project in Andhra Pradesh. A security covenant in the term loan agreement with IREDA required M/s.Wescare (India) Ltd. to mortgage the acquisition of immovable property to IREDA by way of first mortgage. Though interested in pursuing Real Estate opportunities, there was an embargo on M/s.Wescare (India) Ltd. in pursuing the same; however, there was no prohibition on them in utilising their surplus funds in any manner that they chose and hence, they utilised their surplus funds in funding the business transactions of development of Real Estate with the petitioner. Pursuant to the compromise entered into duly by the parties and noted by this Court, M/s.Wescare (India) Ltd. was fully compensated by the petitioner in terms of the Memo of Compromise. (j) The conclusions of the assessing authority are based on a mis-appreciation triggered by the fact that requisite opportunity was not provided to the petitioner to provide the necessary information and clarifications and the impugned order of assessment, dated 20.3.2013 has been received by the petitioner only on 3.4.2013 and it was despatched only on 30.3.2013, as seen from the Postal endorsement. The respondent is attempting to make it appear that the order of assessment has been despatched ten days prior to the date of actual despatch. The date of completion of assessment being 20.3.2013 is clearly an attempt to get over the petitioner's letter, dated 20.3.2013, duly received by the respondent and it highlights the lack of opportunity to the petitioner and it also lacks bona-fide on their part. Hence, the petitioner has filed the Writ Petition challenging the impugned order of assessment, dated 20.3.2013 passed by the respondent. 4. Hence, the petitioner has filed the Writ Petition challenging the impugned order of assessment, dated 20.3.2013 passed by the respondent. 4. The learned counsel for the petitioner submitted that prior to completion of assessment, the respondent required certain information and for completion of their assessment, they issued notice, dated 7.3.2013 under Section 143(2) of the I.T. Act, fixing the date of hearing as 14.3.2013 and the said notice was despatched only on 16.3.2013 and it was duly received by the petitioner only on 20.3.2013, and thus it is clear that the despatch of notice itself is subsequent to the date of hearing and hence, the impugned order has been passed without affording an opportunity of hearing to the petitioner and therefore, it is contrary to law and passed in violation of the principles of natural justice. 5. Learned Senior Standing Counsel appearing for the respondent-Revenue, after getting necessary written instructions from the respondent, submitted that as there was no response from the petitioner-assessee, a notice dated 7.3.2013 under Section 143 (2) of the I.T. Act was issued, fixing the date of hearing of the case as 14.3.2013 for clarifying certain issues. However, by over-sight, the notice of hearing was despatched only on 16.3.2013, which fact was never brought to the notice of the undersigned therein, and therefore, the mistake is bona-fide. 6. On the above background of pleadings, I have heard the learned counsel appearing for the parties and perused the material documents available on record. 7. It is seen that there was a notice dated 7.3.2013 issued by the respondent under Section 143(2) of the I.T. Act fixing the date of hearing of the case as 14.3.2013 for clarifying certain issues. It is admitted that the said notice was received by the petitioner only on 20.3.2013, i.e. after the date of hearing fixed on 14.3.2013. In this regard, the learned Senior Standing Counsel appearing for the respondent-Revenue produced a copy of the written instructions of the respondent, in PAN AABCG3714B/2005-06, dated 17.4.2013, wherein, it is stated as follows: " .... .... ..... 4. For the purpose of assessment proceedings, Shri Sivakumar, FCA and Authorised Representative of the assessee company appeared and filed the various details called for. The Authorised Representative appeared on 27.12.2012. The case was posted for further hearing on 02.01.2013. The Authorised Representative appeared on 16.01.2013 and the case was adjourned to 21.01.2013. .... ..... 4. For the purpose of assessment proceedings, Shri Sivakumar, FCA and Authorised Representative of the assessee company appeared and filed the various details called for. The Authorised Representative appeared on 27.12.2012. The case was posted for further hearing on 02.01.2013. The Authorised Representative appeared on 16.01.2013 and the case was adjourned to 21.01.2013. During the course of hearing, the Authorised Representative filed his written submissions along with necessary details and documents. 5. There was no response from the assessee company thereafter. A notice dated 07.03.2013 was issued u/s 143(2) of the Income Tax Act, 1961, posting the case for hearing on 14.03.2013, for clarifying certain issues. However, by oversight, the hearing notice was not despatched and was despatched only on 16.03.2013. This fact was never brought to the notice of the undersigned. The mistake thus is a bona fide mistake. 6. As per the hearing notice, the case was posted for hearing on 14th March 2013 at 11.30 AM. However, there was no response. Considering the fact that the assessment proceedings get time barred by 31.03.2013, the undersigned proceeded to complete the assessment and order dated 20.3.2013 was passed under Section 143(3) rws 147 of the Income Tax Act, 1961, raising a demand ....., after taking into consideration the details and documents available on record." 8. From the facts pleaded and on a perusal of the abovesaid written instructions, it is clear that as there was no timely service of notice, dated 7.3.2013 about the hearing dated 14.3.2013 and due to over-sight, it was stated to have been despatched only on 16.3.2013 by the respondent, i.e. after the date of hearing, and therefore, there was denial of opportunity of hearing to the petitioner before passing the impugned order, resulting in violation of principles of natural justice. It requires under law that the assessee should be heard in the matter before concluding the proceedings and therefore, the authority is bound to afford an opportunity of hearing to the assessee in accordance with law, before proceeding to pass an order. Hence, the impugned order passed by the respondent cannot be sustained and the same is liable to be set aside and the matter should be remanded back to the respondent for fresh consideration. 9. Hence, the impugned order passed by the respondent cannot be sustained and the same is liable to be set aside and the matter should be remanded back to the respondent for fresh consideration. 9. At this stage, the learned Senior Standing Counsel appearing for the respondent-Income Tax Department submitted that the respondent should be safeguarded, since there is limitation period for passing orders on the assessment. Disputing this submission, the learned counsel for the petitioner submitted that when once the impugned order is set aside, the question of limitation does not arise. 10. Considering the above submissions of both the parties, it is observed that it is for the respective parties to adjudicate the matter in accordance with law, including the question of limitation. 11. With the above observations, the impugned order is set aside. The Writ Petition is allowed and the matter is remanded back to the respondent for fresh consideration and passing appropriate orders on merits and in accordance with law, after giving an opportunity of hearing to the petitioner and on following the procedures contemplated under Law. No costs. The Miscellaneous Petition is closed.