TMI Blog2021 (12) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 144B(1) (xvi) and 114B(1)(xx)(ii), the final notice along with the draft assessment order has not been served upon the petitioner. As decided in GANDHI REALTY (INDIA) PRIVATE LIMITED VERSUS ASSISTANT/JOINT/DEPUTY/ASSITANT COMMISSIONER OF INCOME TAX/INCOME TAX OFFICER [ 2021 (12) TMI 313 - GUJARAT HIGH COURT] if there is any variation prejudicial to the assessee, final notice with the draft assessment order needs to be served necessarily as per the mandate of the statute and otherwise the order passed is non-est as provided under the said provisions itself. The present petition is allowed. The impugned order of assessment and consequent notice of demand is quashed and set aside. The respondent/revenue will be at liberty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay implementation and operation of the order at Annexure-A to this petition and stay the demand notice at Annexure G to this petition and the Penalty notice at Annexure-H to this petition. (c) any other and further relief deemed just and proper be granted in the interest of justice; (d) to provide for the cost of this petition. 3. We have heard the learned Advocate Mr. Bandish Soparkar who has not disputed that for the proposed variation a show cause notice has not been issued. We could notice from 24.8.2021 show cause notice issued to the petitioner the variation has been proposed by the law officer concerned. He has taken us to the order which is impugned dated 22.9.2019 urging fervently that neither there is draft assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal. 6. Noticing the nature of litigation and the averment set out questioning the noncompliance of provision of law, we are inclined to accede to the request of stay the implementation and operation of the assessment order dated 27.09.2021 till 14.12.2021. 7. Affidavit-in-reply shall be filed in the instant case on or before 14.12.2021. 3. Affidavit-in-reply has been filed for and on behalf of the respondent by the learned senior standing counsel, Mr.Varun Patel, where he has given the chronology of events to say that the draft assessment order after being approved by the Range Head of the Faceless Assessment Unit was sent to Assessing Officer of Faceless Assessment Unit on 22.09.2021. He submitted the draft for review to N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n served upon the petitioner. 5. This Court has heard the learned senior advocate, Mr.Soparkar along with learned advocate, Mr.Bandish Soparkar for the petitioner and learned senior standing counsel, Mr.Varun Patel for the respondents-department. 6. Matter has been taken up for final hearing at a initial stage noticing the clear admission in the affidavit-in-reply on behalf of the respondents. This Court in case of Gandhi Realty (India) Private Limited Versus Assistant /Joint/ Deputy/ Assitant Commissioner Of Income Tax/ Income Tax Officer rendered in Special Civil Application No.7662 of 2021 has already dealt with this issue discussing Section 144B of the Income Tax Act, 1961. If there is any variation prejudicial to the assessee, fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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