TMI Blog2021 (11) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... er was not served on the Petitioner. It is also not in dispute that the variation proposed in the draft Assessment Order is prejudicial to the assessee's interest. It is, therefore, clear that Respondent No.1 has not issued a show-cause notice to the assessee in the form of a draft Assessment Order and made an addition of ₹ 120,94 Crore and second demand of ₹ 8.14 Crore. As per the case of Multiplier Brand Solutions Pvt. Ltd. [ 2021 (11) TMI 822 - BOMBAY HIGH COURT] are of the view that the impugned order of assessment and consequent notice of demand cannot be sustained. Assessment Order passed under Section 143(3) read with Section 144 and notice of demand under Section 156 of the said Act are quashed and set aside.The matter is remanded to Respondent No.1 to complete assessment proceedings, by following procedure as contemplated by Section 144B. - WRIT PETITION NO.1282 OF 2021 - - - Dated:- 28-10-2021 - K. R. SHRIRAM AND AMIT B. BORKAR, JJ. Mr. Dharan V. Gandhi for Petitioner. Mr. Suresh Kumar for Respondent. Oral Judgment : (Per Amit B. Borkar, J.) Rule. With the consent of both sides, Rule made returnable forthwith. 2. Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that there is no violation of provisions of the Act as ample opportunity was granted to petitioner from time to time to explain its claim with supporting documents. 6. For efficacious adjudication of the issue involved, it is necessary to consider relevant provisions of section 144B of the Act. Accordingly, in the context of opportunity of personal hearing and service of the draft assessment order, the relevant portion of section 144B is quoted as under: 144B. (1) Notwithstanding anything to the contrary contained in any other provisions of this Act, the assessment under sub-section (3) of section 143 or section 144, in the cases referred to in sub-section (2), shall be made in a faceless manner as per the following procedure, namely:- xiv) the assessment unit shall, after taking into account all the relevant material available on the record make in writing, a draft assessment order or, in a case where intimation referred to in clause (xiii) is received from the National Faceless Assessment Centre, make in writing, a draft assessment order to the best of its judgment, either accepting the income or sum payable by, or sum refundable to, the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner or the Director-General, in charge of the Regional Faceless Assessment Centre, under which the concerned unit is set up, may approve the request for personal hearing referred to in clause (vii) if he is of the opinion that the request is covered by the circumstances referred to in sub-clause (h) of clause (xii); (ix) where the request for personal hearing has been approved by the Chief Commissioner or the Director- General, in charge of the Regional Faceless Assessment Centre, such hearing shall be conducted exclusively through video conferencing or video telephony, including use of any telecommunication application software which supports video conferencing or video telephony, in accordance with the procedure laid down by the Board; (x) subject to the proviso to sub-section (6), any examination or recording of the statement of the assessee or any other person (other than statement recorded in the course of survey under Section 133A of the Act) shall be conducted by an income-tax authority in any unit, exclusively through video conferencing or video telephony, including use of any telecommunication application software which supports video conferencing or video ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the hearing before the National Faceless Assessment Center. Section 144B (1)(xxii) provides that on receipt of the show cause notice, the assessee may furnish his response to the National Faceless Assessment Center. As per sub-section (xxiv) assessment unit shall make a revised draft assessment order after considering the assessee's response and send it to National Faceless Assessment Center. As per Section 144B(7), in case of variation prejudicial to the assessee as proposed in the draft assessment order, the right is conferred on the assessee to request a personal hearing. When the assessee makes such a request, the Chief Commissioner or Director-General in charge of the Regional E-Assessment Center in which the concerned unit is set up is required to consider such request for personal hearing if he is of the view that request is covered by the circumstances provided in exercise of power under sub-clause (h) of clause (xii) of Section 144B of the said Act. 8. Sub-section 9 of Section 144B renders assessment under Section 144 non-est, if it is not made in accordance with the procedure laid down in the said Section. Reading of sub-section 9 of Section 144B clarifies th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated it to the Review Unit. The Review Unit concurred with the draft Assessment Order and submitted its report on 25/04/2021. The impugned Assessment Order was passed on 26/04/2021, and demand notice under Section 156 was also issued on 26/04/2021. From the Affidavit-in-Reply filed by the Respondents, it is not in dispute that the draft Assessment Order was not served on the Petitioner. It is also not in dispute that the variation proposed in the draft Assessment Order is prejudicial to the assessee's interest. It is, therefore, clear that Respondent No.1 has not issued a show-cause notice to the assessee in the form of a draft Assessment Order and made an addition of ₹ 120,94 Crore and second demand of ₹ 8.14 Crore. 12. This Court, in Writ Petition No.1378 of 2021 dated 25/10/2021 in the case of Multiplier Brand Solutions Pvt. Ltd. Vs. Additional / Joint / Deputy / Assistant Commissioner of Income Tax Officer Ors. has held as under:- .......Under Section 144B(1)(xvi)(b), if there is going to be a variation prejudicial to the assessee, a draft assessment order has to be issued. Admittedly it has not been issued. It has also been held by this cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
