TMI Blog2022 (9) TMI 1323X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the petition and quashed the order and notice, as mentioned above, only on the ground of breach of natural justice without going into much less expressing any opinion on the merits of the case of the either side. - R/SPECIAL CIVIL APPLICATION NO. 14344 OF 2021 - - - Dated:- 1-8-2022 - HONOURABLE MR. JUSTICE N.V.ANJARIA AND HONOURABLE MR. JUSTICE BHARGAV D. KARIA MS VAIBHAVI K PARIKH FOR THE PETITIONER MRS KALPANAK RAVAL FOR THE RESPONDENT ORDER PER : HONOURABLE MR. JUSTICE N.V.ANJARIA With request and consent of learned advocates for the parties, the petition was taken up for final consideration today. 1.1. Rule, returnable forthwith. Learned advocate Mr.Nikunt Raval waives service of Rule for the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me was communicated to the petitioner by issuing show-cause notice dated 15.04.2021, asking the petitioner as to why the assessment should not be completed as per the draft assessment order. 3.3 It was stated in the notice inter alia that the response should be submitted before particular time on 17.04.2021. It was communicated that it was open for the petitioner to prefer personal hearing. The petitioner addressed letter dated 17.04.2021, furnishing the details required under the show-cause notice, which was pertaining to unsecured loans. The petitioner stated he would need further 2-3 days and the further details were also furnished on 19.04.2021. 3.4 It is to be noted that on account of the Covid- 19 Pandemic, the Government of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and further time was needed. It was submitted that by not extending such opportunity and not granting adjournment and passing draft assessment order by the respondent authority has violated the principles of fair hearing, which is a guaranteed right flowing Article 14 of the Constitution. It was submitted that effective opportunity was sine qua non before draft assessment could be passed. 4.1 On the other hand, learned advocate for the respondent, relying on the affidavit-in-reply filed on behalf of the respondent, had sought to raise several contentions including on merits. According to the respondent, the assessee was given more than sufficient opportunity to file replies and draft assessment order was therefore passed. There is no ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order was a statutory requirement. 5.1.1 The right of the assessee to reply and put forth his case and objection to the draft assessment order was recognised. Observing that the statute provides opportunity of hearing, 5.1. It could not be said, nor it is the case of the Department, that the right of the assessee to reply and put forth his case and the objections, if any, at the stage of draft assessment order before it culminates into the final assessment order under Section 143(3) read with Section 144B of the Act, was not the statutory providence. When statute provides for opportunity of hearing and the same is not complied with and breached, it could be said to have operated prejudicial to the assesee, without anything requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessment order dated 05.05.2021 under Section 143(3) read with Section 144B of the Act as well as the notice dated 05.05.2021 under Section 274 read with Section 270A of the Act are hereby set aside. 6. The assessment proceedings are remanded to the Assessing Officer to be taken up afresh from the stage of the draft assessment order. The Assessing Officer shall pass appropriate order after giving opportunity to the petitioner to file reply. 6.1 The entire assessment proceedings culminating into the final assessment order shall be completed within twelve weeks from the date of receipt of this order. 6.2 We make it clear that we have allowed the petition and quashed the order and notice, as mentioned above, only on the ground o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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