TMI Blog2021 (10) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... ice dated 9th April, 2021. Respondent No.2, however, in haste, passed the impugned assessment order dated 18th April, 2021, u/s 143 (3) read with Section 144B of the Act without granting Petitioner the opportunities as provided in Section 144B viz., issuance of show cause notice mandated under the said section for faceless assessment as well as serving the draft assessment order. Although, the relevant paragraph 24 of the Petition has adverted to the fact that Section 144B of the Act had not been complied with by Respondent No.2 not issuing any show cause notice to Petitioner inspite of the impugned assessment order containing additions / disallowances, the said Affidavit in Reply of the Respondents is silent in that respect. It only mentions that Petitioner had been given ample opportunities to respond to the notices issued and that Petitioner was unable to address four out of seven issues properly. The impugned assessment order that there are variations from the return filed by Petitioner by containing additions / disallowances. The final assessment order is not made in accordance with the procedure laid down u/s 144B (xvi)(b) of the Act as inspite of the variation being pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, a public holiday in Maharashtra and many parts of India. So effectively Petitioner had one working day to respond. 4. Notwithstanding this grossly inadequate time being granted, Petitioner filed its submissions dated 13th April, 2021 submitting partial details / documents and requested further time to provide balance details considering the short time given vide notice dated 9th April, 2021. Another reason for further time was the Covid-19 situation where strict lock down was in force. Petitioner filed additional submission dated 17th April, 2021 giving further details and explanation. 5. Respondent No.2 passed assessment order dated 18th April, 2021 under Section 143(3) read with Section 144 of the Income Tax Act, 1961 ( the Act ) without giving any further opportunity to the Petitioner and also ignoring the submissions made by Petitioner. Respondent No.2 also did not issue any show cause notice as mandated by Section 144B of the Act for faceless assessment. The draft assessment order was also not furnished to the Petitioner as per Section 144B of the Act. The impugned assessment order contains additions and disallowances. Petitioner being aggrieved by the impugned assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng contained in any other provision of this Act, assessment made under sub-section (3) of section 143 or under section 144 in the cases referred to in sub-section (2) shall be non est if such assessment is not made in accordance with the procedure laid down under this section. He submitted that the final assessment order dated 18th April, 2021 had been passed without serving upon Petitioner a show cause notice and draft assessment order as well as not granting Petitioner a personal hearing as mandated under Section 144(B) of the Act for faceless assessment. Mr. Pardiwala has accordingly submitted that such non-conformity with the provisions of Section 144 (B) of the Act would result in the impugned assessment order dated 18th April, 2021 being non est and requires to be set aside. 11. Mr. Walve, learned Counsel for Respondents, relying upon an Affidavit in Reply dated 13th August, 2021 filed by one D. Ghosh, DCIT, Circle 1, Kalyan, submitted that inspite of ample opportunities, Petitioner / Assessee is still claiming that reasonable time has not been given. Petitioner had responded 10 times to the notices issued by the department but four issues out of seven have not been prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee on the basis of such assessment; or (b) provide an opportunity to the assessee, in case any variation prejudicial to the interest of assessee is proposed, by serving a notice calling upon him to show cause as to why the proposed variation should not be made; or (c) . (xxv) (a) in case the variations proposed in the revised draft assessment order are not prejudicial to the interest of the assessee in comparison to the draft assessment order or the final draft assessment order, and (A) in case the revised draft assessment order is inrespect of an eligible assessee and there is any variation prejudicial to the interest of the assessee proposed in draft assessment order or the final draft assessment order, forward the said revised draft assessment order to such assessee; (B) in any other case, finalise the assessment as per the revised draft assessment order and serve a copy of such order and notice for initiating penalty proceedings, if any, to the assessee, along with the demand notice, specifying the sum payable by, or refund of any amount due to, the assessee on the basis of such assessment. (b) in case the variations proposed in the revised dra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 144B for faceless assessment, the assessment order shall be non est. Thus, Sub-section (a) of Section 144B makes it amply clear that the Section 144B is a mandatory provision and noncompliance thereof would make the assessment order non-est. 14. In the present case the notice issued on 9th April, 2021 under Section 142 sub-section (1) of the Act called upon Petitioner to submit by 6.54 p.m. on 13th April 2021 the accounts and documents specified in the annexure to the said notice. Petitioner had issued its response on 13th April, 2021 and in view of the short time given for filing of the response as well as prevailing Covid-19 situation, Petitioner had been able to provide only partial details and requested for further time. Petitioner thereafter filed additional submissions dated 17th April, 2021 giving details and explanation in relation to the points raised in the notice dated 9th April, 2021. Respondent No.2, however, in haste , passed the impugned assessment order dated 18th April, 2021, under Section 143 (3) read with Section 144B of the Act without granting Petitioner the opportunities as provided in Section 144B of the Act, 1961, viz., issuance of show cause notice m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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