TMI Blog2021 (9) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... en issued, there has been a violation of the mandatory procedure prescribed in law. This Court is of the view that once the assessment has been done by the Respondent No. 1 in accordance with Section 144B of the Act, it has to be done in accordance with the procedure prescribed therein alone. It is settled law that when power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are forbidden - even if it is assumed that the principles of natural justice have been complied with in the present case, then also the mandate of the statute would have to be complied with. Keeping in view the aforesaid, the impugned assessment order and notice of demand and the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inference against the Petitioner and creating a tax demand of ₹ 3,11,37,680/-. 5. He relies on para 4 of the Central Board of Direct Taxes instruction no. 20/2015, dated 29th December 2015 which inter alia provides for a fair opportunity to an Assessee to explain its case and mandates issuance of a show cause notice. The relevant portion of the said instructions no.20/2015 is reproduced hereinbelow:- 4. The Board further desires that in all cases under scrutiny, where the Assessing Officer proposes to make additions or disallowances, the assessee would be given a fair opportunity to explain his position on the proposed additions/disallowances in accordance with the principle of natural justice. In this regard, the Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cases transferred under subsection (8)], on or after the 1st day of April, 2021, shall be non est if such assessment is not made in accordance with the procedure laid down under this section. 8. Since in the present case no prior show cause notice as well as draft assessment order had been issued, there has been a violation of the mandatory procedure prescribed in law. 9. This Court is of the view that once the assessment has been done by the Respondent No. 1 in accordance with Section 144B of the Act, it has to be done in accordance with the procedure prescribed therein alone. 10. It is settled law that when power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other me ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
