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2022 (10) TMI 1134 - HC - Income TaxValidity of faceless assessment - draft assessment order is not forwarded to the petitioner - ignorance of due procedure of law - whether the respondent authorities have followed the due procedure of law as envisaged under Section 144B(1)(xvi) read with Section 144B(7)(vii) and (xii) of the Act or not, while passing the impugned assessment order dated 26th September, 2021? - HELD THAT:- The answer to the above question are not res integra inasmuch as the provision of Section 144B of the Act which provides for Faceless Assessment for the assessment under Section 143(3) and 144 to be carried out as per the procedure contained therein and Sub-section (9) of Section 144B provides that notwithstanding anything contained in any other provision of the Act, the assessment made under Section 143(3) or Section 144 of the Act, shall be non-est if such assessment is not made in accordance with the procedure laid down u/s 144B of the Act. The opportunity of hearing as envisaged under Section 144B of the Act is also therefore, required to be scrupulously adhered to as the principles of natural justice are unfailingly ingrained in the procedure prescribed for Faceless Assessment. As in the facts of the case, it is not in dispute that the draft assessment order is not forwarded to the petitioner, which is required to be sent along with the show-cause notice as per the procedure prescribed u/s 144B(1) (xvi)(b) - This Court in case of Atulbhai Kantilal Mehta [2022 (1) TMI 1289 - GUJARAT HIGH COURT] as well as in case of Agrawal JMC Joint Venture [2021 (10) TMI 1317 - GUJARAT HIGH COURT] has held that it is no more res integra that any order passed in violation of statutory procedure prescribed under Section 144B of the Act, makes the order vulnerable as the same is passed in violation of principles of natural justice. The contention raised on behalf of the Revenue with regard to alternative and efficacious remedy available to the petitioner and preferring an appeal before the Commissioner of Income Tax is concerned, as the impugned order is passed in violation of principles of natural justice and is contrary to the procedure prescribed for Faceless Assessment as per Section 144B of the Act, we are of the opinion that the same can be challenged by invoking the extraordinary jurisdiction under Article 226 of the Constitution of India as per the decision in case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Others [1998 (10) TMI 510 - SUPREME COURT] This petition succeeds and is accordingly allowed. The matter is remanded back to the Assessing Officer by quashing and setting the impugned assessment order dated 26th September, 2021 along with the demand notice issued under Section 156 of the Act. The Assessing Officer shall issue show-cause notice along with the draft assessment order by granting an opportunity of personal hearing to the petitioner as per the procedure prescribed under Section 144B of the Act.
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