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2021 (10) TMI 921 - BOMBAY HIGH COURTValidity of Faceless assessment - no draft assessment order as required u/s 144B issued - whether Assessment Order was passed after giving due opportunities to Petitioner and after considering its submissions? - Penalty u/s 274 read with Section 271AAC(1) - HELD THAT:- As under the Faceless Scheme, Section 144B of the Act provides for providing a draft Assessment Order if the Respondent was going to make any variation prejudicial to the interest of the assessee by serving a notice calling upon him to show-cause as to why the proposed variation should not be made. Such an opportunity has not been granted to Petitioner. This is one more ground for us to interfere. In the Affidavit-in-Reply filed by one Mahesh T. Variava, affirmed on 03/09/2021, it is stated that the addition on account of remaining 4 unsecured creditors was included in the Assessment Order. In the Assessment Order, however, the addition has been made with regard to 7 unsecured creditors. In the Affidavit-in-Reply it also says the Assessment Order was passed after giving due opportunities to Petitioner and after considering its submissions. This is an incorrect statement because Respondent did not provide a draft Assessment Order which was mandatorily required to be provided under Section 144B. Respondent has also not considered all submissions of Petitioner because in the Assessment Order, Respondent has not dealt with the request of Petitioner to issue summons to the third party lenders. There is certainly infirmity in the Assessment Order dated 23/04/2021 which is impugned in this petition. We hereby set aside the said Assessment Order along with notice of demand in Form 7 dated 23/04/2021 as well as show-cause notice dated 23/04/2021 issued under Section 274 read with Section 271AAC(1) of the Act. Respondent shall issue a draft of the Assessment Order to Petitioner and give an opportunity to Petitioner to file its objections along with documentary evidence and thereafter pass such order as it deems fit by also giving a personal hearing as per rules, to Petitioner.
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