TMI Blog2023 (2) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... counts non-grant of virtual hearing, though asked for repeatedly by the petitioner, and because the additions are made beyond the scope and issue of the show cause notice, the final assessment order passed deserves to be interfered with. Resultantly assessement order and the demand notice issued under Section 144 of the self same date are hereby quashed. - HONOURABLE MS. JUSTICE SONIA GOKANI AND HONOURABLE MR. JUSTICE SANDEEP N. BHATT MR D K TRIVEDI AND MR DEVARSHI C SHAH FOR THE PETITIONER MRS KALPANAK RAVAL AND MS MAITHILI D MEHTA FOR THE RESPONDENT ORDER PER : HONOURABLE MS. JUSTICE SONIA GOKANI The present petition is preferred under Article 226 and 227 of the Constitution of India where at the time of issuance of notice on 25.10.2021, this Court passed the following order : 1.Petitioner is regularly assessed to tax by the respondent. For the Assessment Year 2018- 19, income tax was filed on 26.08.2018. On 23.04.2021, he received a show cause notice as to why the assessment be not completed as per the draft assessment order. He filed the reply for the same on 24.04.2021. Further reply was filed on 06.05.2021. On 03.06.2021, the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed post is permitted. 2. Affidavit-in-reply is filed by the respondent, denying each and every allegations made and contentions raised in the memo of the petition. 3. According to the respondent, the additions have been made as per the provisions of Sections 145(3), 68, 69A and 36(1) (iii) of the I.T Act and following the procedure of faceless assessment scheme under Section 144B of the I.T Act. 4. It is further contended that reply forwarded by the Assessing Officer against the objections raised by the assessee during the course of the assessment proceedings are self-explanatory. The objections were duly considered by the Assessing Officer of the ReFAC vide letter dated 22.9.2021, including the rejections of the VC request, whereby it was communicated that there is no legal aspect to be heard and therefore, the request for the video conference is rejected. It is reiterated that in the faceless assessment, without proper and complete details the case could not be discussed with the assessee through video conference. 5. According to the respondent, the assessment order is passed as per the provisions of the I.T Act and guidelines issued by the CBDT from time to time. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time, there are bound to be certain hiccups while implementing and creases also to be ironed out at the level of department. For the officials and assessee also, acceptance of change, its comprehension and implementation in true purport is a challenge as well. 7.06. Various issues arise in relation to the implementation of this provision, some due to limitation in comprehension, other for want of requisite training after its introduction and still others are begging the change of mindset. 7.07. This provision starts with non-obstant clause and it warrants service of notice to the assessee in case of scrutiny assessment under section 143(3) and 144(2) be replied to by the assessee in 15 days' time, after allocation through automated system to any Regional Faceless Centre. 7.08. For fulfilling the need of document etc. the request of an assessment unit from regional faceless centre also shall be through Faceless Assessment Centre. 7.8.1. Once there is a need to make reference to verification unit or technical unit, it is necessarily to be done through NFAC only and in absence of any response of assessee, the NFAC would serve a notice under section 144 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice, order, draft order etc. and here in Faceless Regime, placing in assaessee's registered account, sending to the e-mail or uploading in mobile APP, is a due service which can never be missed and its trail is easily found, therefore, service or nonservice also is no longer an issue and the time and place of dispatch and receipt of electronic record is detained in accordance with the provisions of section 13 of the Information Technology Act, 2000.. 7.12. Sub-section (9) of section 144B clearly provides that the assessment would be non-est if the said provision is not followed procedurally on or after 01.04.2021. This depicts a clear legislative intent that every step and stage of procedural requirement of this provision is needed to be regarded with matching seriousness. 8. The Orissa High Court in the case of Sribasta Kumar Versus Union of India and another in WP No.29279 of 2021, was examining the issue where principal ground on which the assessment order had been challenged that was, that the mandatory requirement under section 144B of the Act has not been complied with prior to issuance of the assessment order, wherein the Court held thus: 5. It is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er efficiency, transparency and accountability by (a) climinating the interface between the Assessing Officer and the assessee in the course of proceedings to the extent technologically feasible: th) opumising utilisation of the resources through economics of scale and functional specialisation (c) introducing a team-based assessment with dynamic jurisdiction. (3B) The Central Government may, for the purpose of giving effect to the scheme made under subsection (3A), by notification in the Official Gazette, direct that any of the provisions of this Act relating to account of total income or loo shall not apply or shall apply with such exceptions, modifications and adaptations as may be specified in the notification Provided that no direction shall be issued after the 31st day of March, 2021, XXX (3D) Nothing contained in sub-section (3A) and subsection (3B) shall apply to the assessment made under sub-section (3) or under section 144, as the case may be, on or after the 1st day of April, 2021) 9.2. Besides this, Mr. Vohra is also right in his contention that the CBDT notification dated 31.03.2021, to which, we have made a reference. hereinabove, also says, in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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