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TMI Blog2023 (2) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... filed on 02.07.2021 to the interim letter in relation to the scrutiny assessment. The respondent proposed to reject the books of accounts and estimated net profit at the rate of 5.52% of the total turnover. Further reply also had been filed on 09.07.2021 to the said show cause notice. The notice under section 142 also was received from the respondent on 29.07.2021. It was replied to on 09.08.1991. It is the grievance on the part of the petitioner that from the time the show cause notice along with the draft assessment order dated 23.04.2021 was received, which permitted the petitioner to meet the requisition for personal hearing through the video conferencing, he made not less than four times such requests. Not only such request has not been granted, but also the subsequent action on the part of the respondent was of completing the assessment on rejecting his books of accounts and making the addition 50 times more to the income proposed to be assessment under the show cause notice, which deserves indulgence. 2.Prayer sought for are as follows:- "III.PRAYER: (A) Issue a writ of certiorari and/or a writ of mandamus and/or any other writ direction or order to quash and set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n both the sides. We could also notice at the time of issuance of notice that it is a serious grievance on the part of the petitioner that he made the request for not less than 4 times to hear through video conference and there were various reasons for such insistence. The subsequent action on the part of the respondent of completing the assessment on rejecting the books of accounts and making the addition 50 times more to the income proposed to be assessed would surely need to be regarded. 7. Communication of 22.9.2021 is quite clear that the same is in response to the request from petitioner's side being of 18.9.2021. The said request of the petitioner has been rejected on the ground that there is no legal aspect to be heard of. The proposed additions are a matter of fact duly placed before this court. It is not for the officer concerned to decide as to whether there is anything to be considered or not to be considered without any material having come before him or before he allows the audience to the party concerned. This was a faceless assessment, for which, the provision has been extensively done. Reference will be to Section 144 B which speaks of the faceless assessment. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t order to be sent to NFAC and even when information called for, in clause (xii) have been received, the draft assessment order needs to be prepared with or without variations as ends also specifying penalty, if any. 7.09. The National Faceless Assessment Centre shall examine the draft assessment order in accordance with the risk management strategy specified by the Board, if there is variation prejudicial to the interest of the assessee, it can finalise the assessment and serve copy of the order and notice to the assessee for initiating penalty proceedings, or for refund of any amount. However, when there is question of any variation, which may prove to be prejudicial to the interest of assessee, it is obligated to provide an opportunity to the assessee by serving a notice and calling upon him to show cause as to why proposed variation be not made or it has the third option of sending it back to the Regional Faceless Assessment Centre for conducting review of such order; 7.10. It is quite clear from the very provision that the assessee is required to be provided an opportunity once there is a possibility of any variation which may turn prejudicial to the interest of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal position explained in the above judgments, on the above short ground this Court sets aside the impugned order of assessment dated 8th September, 2021 of the NFAC as well as all consequential notices/orders. The Court nevertheless grants liberty to the Department to pass a fresh assessment order for the AY 2017-18 after complying with the requirement of the law by giving the Petitioner a personal hearing at a date and time, which should be communicated to the Petitioner sufficiently in advance. It is needless to say that the Petitioner assessee will cooperate in the fresh assessment proceedings and furnish all the documents and information as are available with it relevant to the proceedings." 9. The Delhi High Court in W.P.(C) 5849/2021 in the case of Gurgaon Realtech Limited versus National Faceless Assessment Centre Delhi (Earlier national E- assessment Centre Delhi), delivered on 04.06.2021 was considering the identical issue where challenge to the assessment order was passed on the ground of the same having been passed without jurisdiction. Following are the findings and observations which deserve reproduction. "9. We have considered the submissions made by the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t aside the impugned assessment order dated 15.04.2021 as also the notice of demand issued under Section 156 of the Act and the notice for initiating penalty) proceedings issued under Section 274 read with Section 270A of the Act. 10.1. That being said, the respondent/revenue will have liberty to proceed with the assessment process, albeit, under the provisions of Section 144B of the Act. Needless to add, if a show cause notice-cum-draft assessment order is served on the petitioner, an opportunity would be given to the petitioner to file its response/objections to the same. Furthermore, if there is a variation proposed in the income of the petitioner, an opportunity of personal hearing will also be accorded. In sum, the procedure prescribed under Section 144B of the Act will be followed by the respondent/revenue." 10. The Delhi High Court in the case of in W.P.(C) 6662/2021 in the case of Rani Promotors Private Rotomoter Pvt. Ltd. Versus Additional Commissioner of Income Tax on 19th July, 2021 also considered the same question. The court availing an opportunity of hearing be set aside the impugned order which was passed availing such opportunity. Relevant paragraphs of the af ..... X X X X Extracts X X X X X X X X Extracts X X X X
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