TMI Blog2021 (9) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... of the writ petitioner in the case on hand owing to the factual matrix and the most relevant paragraph in Tin Box case law The above buttresses the principle that in a given case of indisputable NJP violation i.e., aforementioned facet of NJP, availability of statutory appeal argument pales into insignificance. With regard to the third point which turns on Section 144B(7)(viii), this Court refrains itself from expressing any opinion on the same at this point of time as I only propose to relegate the matter for assessment afresh after considering the writ petitioner-assessee's response, which has not been done qua the impugned order. Therefore, when the response of writ petitioner-assessee is considered, it will include consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n up. 5. An 'Assessment order dated 06.08.2021 bearing reference ITBA/AST/S/143(3)/2021-22/1034696402(1)' [hereinafter 'impugned order' for the sake of convenience and clarity] has been called in question in the captioned writ petition, where the prayer is one for Certiorari. 6. Impugned order has been made under Section 143(3) of 'The Income Tax Act, 1961' [hereinafter 'IT Act' for the sake of brevity] read with 144B of IT Act. To be noted, Section 144B of IT Act kicked in on 01.04.2021. 7. Short point turns on Section 144B(1)(xvi)(b) read with 144B (7)(vii) as a 'Show Cause Notice dated 20.07.2021' [hereinafter 'first SCN' for the sake of brevity] was issued calling upon writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n adjournment has been sought. Paragraph 11 of the impugned order reads as follows: ' 11. In view of the above for making things more rational and meeting out the parameters of natural justice a draft assessment order elaborating each item of addition was issued on 20.07.2021. Date fixed for compliance was 26.07.2021. On the fixed date, neither any reply was submitted nor was any adjournment sought by the assessee. Again show cause notice dated 03.08.2021 along with Draft assessment order and computation sheet were issued to the assessee. Date fixed for compliance 05.08.2021. On the date fixed, neither any reply nor any adjournment was sought by the assessee. It shows that assessee has no valid explanation regarding additions propo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support of this contention, learned Revenue counsel drew the attention of this Court to Section 144B (7)(viii). 13. I now embark upon the exercise of considering the rival submissions, discussing the same and giving my dispositive reasoning for disposal of captioned writ petition. 14. With regard to the first submission of the Revenue counsel i.e., leaving open the question qua Section 144B/143(3A), the request is acceded to as the same is neither relevant nor imperative to clinch the bone of contention in the case on hand. 15. The second point turns on the statutory appeal provision under Section 246A. I have repeatedly held that alternate remedy qua writ Court is a self-imposed restraint and it is not an absolute Rule. I h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tin Box case law is paragraph 2, which reads as follows: '2.That the assessee could have placed evidence before the first appellate authority or before the Tribunal is really of no consequence for it is the assessment order that counts. That order must be made after the assessee has been given a reasonable opportunity of setting out his case. We, therefore, do not agree with the Tribunal and the High Court that it was not necessary to set aside the order of assessment and remand the matter to the assessing authority for fresh assessment after giving to the assessee a proper opportunity of being heard.' 17. The above buttresses the principle that in a given case of indisputable NJP violation i.e., aforementioned facet o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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