TMI Blog2022 (4) TMI 1184X X X X Extracts X X X X X X X X Extracts X X X X ..... ations from the return filed by the writ applicant as regards disallowance. The final assessment order is not made in accordance with the procedure envisaged under section 144 (xvi) (b) of the act as inspite of the variation being prejudicial to the assessee, no opportunity has been given to the assessee by serving show cause notice along with draft assessment order calling upon him to show cause as to why the proposed variation should not be made. Thus, we have no doubt in holding that the impugned order of assessment dated 07.04.2021 is invalid and nonest, passed in gross violation of principles of natural justice as well as mandatory provision in the form of section 144B of the act. In such circumstances referred to above, we are left with no other option but to quash the assessment order and remit the matter to the Assessing Officer. In the result, the impugned assessment order dated 07.04.2021 is hereby quashed and set aside. We further quashed and set aside the consequential action including demand notice and remit the matter to the Assessing officer from the stage of issuance of draft assessment order along with show cause notice - Decided in favour of assessee. - R/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the respondent had not issued any show cause notice seeking clarifications as regards the claim of deduction under Section 80P(2)(a)(i) of ₹ 2,08,05,240/- to be disallowed and further to be treated as income from other source. 2.5 In absence of such opportunity and without providing draft assessment order, the respondent Authority straightway passed the assessment order on 07.04.2021, whereby the Assessing Officer disallowed the claim of deduction under Section 80P(2)(a) (i) and had treated an amount of ₹ 2,08,05,240/- as an income from other source. 2.6 In such circumstances, the writ applicant being aggrieved has approached this Court seeking relief as prayed for. 3. The principal ground pressed by the writ applicant is with regard to non-compliance of provisions, more particularly, Section 144B(xiv), Section 144B(xvi)(b) and Section 144B(xxii) of the Act. The assessment order impugned is passed without issuing notice cum draft assessment order upon the writ applicant. 4. Mr. Jaimin Gandhi, learned advocate appearing for the writ applicant has taken us through the impugned assessment order and has emphasized on the aforesaid provisions. Mr. Gandhi has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. SB Civil Writ Petition NO.6047 of 2021, Devgiri Exports Vs. ITO (Raj HC) 6. On the other hand, Mr. Varun K. Patel, learned advocate appearing on behalf of the Department has drawn attention of this Court to the affidavit-in-reply filed by the respondent No.2. In the reply, stance taken by the Revenue is that due opportunity of hearing was given to the writ applicant, during the course of the assessment proceeding, however, there is lapse on the part of the Revenue in non-compliance of the provisions of issuance of show cause notice and draft assessment order, which may be condoned. Mr. Patel has also raised objection as regards entertaining writ petition against final order of assessment being passed, as efficacious alternative remedy of appeal is available to the writ applicant. It is therefore urged by the revenue to not to entertain the writ petition. 7. We have heard learned counsel of the parties and have perused the materials on record. The only short question which falls for our consideration is whether the impugned assessment order dated 07.04.2021 and the consequential demand notice is valid and sustainable in law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Faceless Assessment Centre shall issue appropriate notice or requisition to the assessee or any other person for obtaining the information, documents or evidence requisitioned by the assessment unit; (vii) the assessee or any other person, as the case may be, shall file his response to the notice referred to in clause (vi), within the time specified therein or such time as may be extended on the basis of an application in this regard, to the National Faceless Assessment Centre; (viii) where a request for conducting of certain enquiry or verification by the verification unit has been made by the assessment unit, the request shall be assigned by the National Faceless Assessment Centre to a verification unit in any one Regional Faceless Assessment Centre through an automated allocation system; (ix) where a request for seeking technical assistance from the technical unit has been made by the assessment unit, the request shall be assigned by the National Faceless Assessment Centre to a technical unit in any one Regional Faceless Assessment Centre through an automated allocation system; (x) the National Faceless Assessment Centre shall send the report recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or refund of any amount due to, the assessee 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) assign the draft assessment order to a review unit in any one Regional Faceless Assessment Centre, through an automated allocation system, for conducting review of such order; (xvii) the review unit shall conduct review of the draft assessment order referred to it by the National Faceless Assessment Centre whereupon it may decide to- (a) concur with the draft assessment order and intimate the National Faceless Assessment Centre about such concurrence; or (b) suggest such variation, as it may deem fit, in the draft assessment order and send its suggestions to the National Faceless Assessment Centre; (xviii) the National Faceless Assessment Centre shall, upon receiving concurrence of the review unit, follow the procedure laid down in- (a) sub-clause (a) of clause (xvi); or (b) sub-clause (b) of clause (xvi); (xix) the Nation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t assessment order, and- (A) in case the revised draft assessment order is in respect 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, alongwith 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 draft assessment order are prejudicial to the interest of the assessee in comparison to the draft assessment order or the final draft assessment order, provide an opportunity to the assessee, by serving a notice calling upon him to showcause as to why the proposed variation should not be made; (xxvi) the procedure laid down in clauses (xxiii), (xxiv) and (xxv) shall apply mutatis mutandis to the notice referred to in sub-clause (b) of clause (xxv); (xxvii) where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erritorial area, or persons or class of persons, or incomes or class of incomes, or cases or class of cases, as may be specified by the Board. (3) The Board may, for the purposes of faceless assessment, set up the following Centres and units and specify their respective jurisdiction, namely:- (i) a National Faceless Assessment Centre to facilitate the conduct of faceless assessment proceedings in a centralised manner, which shall be vested with the jurisdiction to make faceless assessment; (ii) Regional Faceless Assessment Centres, as it may deem necessary, to facilitate the conduct of faceless assessment proceedings in the cadre controlling region of a Principal Chief Commissioner, which shall be vested with the jurisdiction to make faceless assessment; (iii) assessment units, as it may deem necessary to facilitate the conduct of faceless assessment, to perform the function of making assessment, which includes identification of points or issues material for the determination of any liability (including refund) under the Act, seeking information or clarification on points or issues so identified, analysis of the material furnished by the assessee or any othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be through the National Faceless Assessment Centre. (6) All communications between the National Faceless Assessment Centre and the assessee, or his authorised representative, or any other person shall be exchanged exclusively by electronic mode; and all internal communications between the National Faceless Assessment Centre, Regional Faceless Assessment Centres and various units shall be exchanged exclusively by electronic mode: Provided that the provisions of this sub-section shall not apply to the enquiry or verification conducted by the verification unit in the circumstances referred to in subclause (g) of clause (xii) of sub-section (7). (7) For the purposes of faceless assessment- (i) an electronic record shall be authenticated by- (a) the National Faceless Assessment Centre by affixing its digital signature; (b) assessee or any other person, by affixing his digital signature if he is required to furnish his return of income under digital signature, and in any other case, by affixing his digital signature or under electronic verification code in the prescribed manner; (ii) every notice or order or any other electronic communicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause (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 telephony in accordance with the procedure laid down by the Board; (xi) the Board shall establish suitable facilities for video conferencing or video telephony including telecommunication application software which supports video conferencing or video telephony at such locations as may be necessary, so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pril, 2021), shall be non-est if such assessment is not made in accordance with the procedure laid down under this section. Explanation.-In this section, unless the context otherwise requires- (a) addressee shall have the same meaning as assigned to it in clause (b) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000); (b) authorised representative shall have the same meaning as assigned to it in sub-section (2) of section 288; (c) automated allocation system means an algorithm for randomised allocation of cases, by using suitable technological tools, including artificial intelligence and machine learning, with a view to optimise the use of resources; (d) automated examination tool means an algorithm for standardised examination of draft orders, by using suitable technological tools, including artificial intelligence and machine learning, with a view to reduce the scope of discretion; (e) computer resource shall have the same meaning as assigned to it in clause (k) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000); (f) computer system shall have the same meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his registered mobile number, or by way of update on his Mobile App, or by way of an e-mail at his registered email address, so as to alert him regarding delivery of an electronic communication; (s) registered account of the assessee means the electronic filing account registered by the assessee in designated portal; (t) registered e-mail address means the e-mail address at which an electronic communication may be delivered or transmitted to the addressee, including- (i) the e-mail address available in the electronic filing account of the addressee registered in designated portal; or (ii) the e-mail address available in the last income-tax return furnished by the addressee; or (iii) the e-mail address available in the Permanent Account Number database relating to the addressee; or (iv) in the case of addressee being an individual who possesses the Aadhaar number, the e-mail address of addressee available in the database of Unique Identification Authority of India; or (v) in the case of addressee being a company, the email address of the company as available on the official website of Ministry of Corporate Affairs; or (vi) any e-ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that there are variations from the return filed by the writ applicant as regards disallowance. The final assessment order is not made in accordance with the procedure envisaged under section 144 (xvi) (b) of the act as inspite of the variation being prejudicial to the assessee, no opportunity has been given to the assessee by serving show cause notice along with draft assessment order calling upon him to show cause as to why the proposed variation should not be made. Thus, we have no doubt in holding that the impugned order of assessment dated 07.04.2021 is invalid and nonest, passed in gross violation of principles of natural justice as well as mandatory provision in the form of section 144B of the act. In such circumstances referred to above, we are left with no other option but to quash the assessment order and remit the matter to the Assessing Officer. 11. In the result, the impugned assessment order dated 07.04.2021 is hereby quashed and set aside. We further quashed and set aside the consequential action including demand notice and remit the matter to the Assessing officer from the stage of issuance of draft assessment order along with show cause notice. The Assessing Of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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