TMI Blog2023 (9) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... otice of 28.09.2021 called upon the petitioner to file a response by 29.09.2021 at 11.59 pm. On the very next date, since the assessment was getting time-barred, an order of assessment was passed only for the compliance of the provisions and depriving the petitioner of a reasonable opportunity of being heard. The Division Bench in the case of Dineshkumar Chhaganbhai Nandani (supra) has considered several decisions of this court on the issue of reasonable opportunity of being heard in context of Section 144B of the Act. The assessment order passed u/s 144B read with Section 263 of the Act for the assessment year 2015-16 is quashed and set aside. The matter is remitted to the Assessing Officer so as to enable the petitioner to be heard in light of the detailed submissions made by the petitioner - HONOURABLE MR. JUSTICE BIREN VAISHNAV AND HONOURABLE MR. JUSTICE DEVAN M. DESAI Appearance: For The Petitioner(S) No. 1 : Mr Hardik V Vora(7123) For The Respondent(S) No. 1 : Mr M R Bhatt Co.(5953) For The Respondent(S) No. 2 : Mr Karan Sanghani, Advocate For Mrs Kalpana K Raval(1046) CAV ORDER (PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 63 of the Act. 3. Mr. Hardik Vora, learned advocate appearing for the petitioner has challenged this order on various grounds: (I) Mr. Vora would submit that the order has not considered the detailed submissions point wise made by the petitioner in his reply dated 28.09.2021. He would submit that the first notice was issued on 08.09.2021, second on 21.09.2021 and the final show-cause notice on 28.09.2021. A short time to file reply was given especially when the time limit to complete the assessment was expiring on 30.09.2021. He would submit that it was apparently unfair and unreasonable for the respondents to work out a schedule of responding to the notices at the fag end of the last month i.e. September 2021 when the proceedings would be time barred on 30.09.2021. (II) Mr. Vora would submit that the notice was issued just two days before the limitation was to expire and only a days time was provided which deprived the petitioner of reasonable opportunity of being heard. (III) Mr. Vora would further submit that despite the fact that the petitioner did manage to file a reply on the same date i.e. on 28.09.2023 along with necessary documents, however, an ex-parte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that the said issue was also discussed by the FAO in para 13 of the assessment order dated 30.09.2021. He would draw the attention of the court to the observations made in the assessment order dated 30.09.2021 which reads as under: 13. A show cause notice dated 28/09/2021 was issued to the assessee for proposing to complete the assessment u/s. 144 r.w. section 263 as above and invited assessee objection if any. Assessee has submitted its reply and some of the documents. Submission filed by the assessee is verified, no further modifications in this regard. As the assessee has not produced the document in response to letter dated 08/09/2021 and 21/09/2021, the assessment is completed u/s. 144 of the act. All other details as per return and as records are verified. 4.2 Mr. Sanghani has submitted that in view of the above, there is no reason to entertain the petition and the same deserves to be dismissed. 5. Having heard learned advocates for the respective parties, the facts would indicate that the order under Section 263 of the Act was passed by the PCIT-4 on 16.03.2020. No action was taken thereafter for over a period of 17 months. At the far end of the schedule w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndhi Realty (India)(P) Ltd. (supra), it was the case of the concerned petitioner that a show cause notice-cum-draft assessment order was not issued to the concerned assessee, and therefore, in the facts of the said case, this Court held that though earlier various notices were issued to the concerned assessee, the respondent was required to issue show cause notice-cum-draft assessment order, which is mandatory requirement for faceless assessment. However, we are of the view that the aforesaid decision would not be applicable to the facts of the present case because in the present case, show cause notice-cum-draft assessment order was issued to the petitioner. 13. In the case of Agrawal JMC Joint Venture (supra), similar type of objection was raised by the respondents in the affidavit-in-reply. The contention was raised in the said case that petitioner is having alternative efficacious remedy of filing an appeal before the Appellate Authority and therefore petition may not be entertained. However, the Division Bench of this Court, after considering various aspects and after considering the submissions canvassed by learned advocates appearing for the parties, observed in para 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tural justice and statutorily, it was mandatory for the respondent to issue a show cause notice cum draft assessment order whenever there is variation from the returned income as provided under Section 144B(1) (xiv) of the Act. Therefore, he has urged that notice was uploaded on 17.03.2022 at 12:41 IST and asked the petitioner to comply before 6:00 p.m. on 18.03.2022. Thereby, the petitioner was allowed hardly a time of 12 hours to comply to the aforesaid notice. Further, 18.03.2022 was a holiday on account of Dhuleti and yet the petitioner uploaded all the possible and available details with him. There was gross violation of the principles of natural justice and the entire action of the respondent of completing the assessment was not in consonance with the legislative intent. Heavy reliance was placed on the decisions in Calcutta Discount Co. Ltd. v. ITO, 41 ITR 191 (SC) and in Radhakishan Industries v. State of Himachal Pradesh and Others, (2021) 6 SCC 771. The addition made herein of Rs. 39,87,750/- allowing less than four hours to make necessary calculations and collect the details is next to impossible task and hence, the order is sought to be interfered with. 6. Havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner submitted reply, it is the specific case of the petitioner that the respondents have failed to grant adequate opportunity of hearing/ an opportunity to defend was not given to the petitioner assessee. We have gone through the reply dated 29.03.2022 submitted by the petitioner, copy of which is placed on record at page 82 of the compilation. A specific request was made by the petitioner to the respondent that particular documents/details be supplied for cross verification and an opportunity to cross-examine one Mr. Saurabh Kathwadia be given to the petitioner. However, it is not in dispute that the said documents as asked for by the petitioner were not supplied to him nor any opportunity of cross-examination of the aforesaid person was granted to the petitioner. Even otherwise, within less than 12 hours, it is difficult for the petitioner to submit complete reply to the respondents. 6.2 In the case of M/s. Advance Reality Developers (supra), the Division Bench of this court considering the provisions of Section 144B of the Act held as under: 11. Wherever, there is a clear breach in following the procedure under this provision, assessment made under Section 143 (3) or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken by the Assessing Officer and the same would frustrate the very object with which Section 144B came to be introduced in the Act with effect from 01.04.2021. Mr. Shah laid much emphasis on the subclause (9) to Section 144B which starts with a non-obstante clause. Sub-section (9) to Section 144B provides that notwithstanding anything contained in any other provision of the Act, the assessment made under sub-section (3) of Section 143 or under Section 144 in the cases referred to in sub-section (2) would be treated as non-est if such assessment is found to be not in accordance with the procedure laid down under Section 144B of the Act. 19. The relevant aspects as pointed out by the assessee cannot be said to have been looked into from a proper perspective. We don t find any discussion in the impugned assessment order. This is the reason why we are saying that the procedure as contemplated under Section 144B cannot be said to have been duly followed in the case on hand. 20. In view of the aforesaid, we are left with no other option but to quash and set aside the impugned assessment order and remit the entire matter to the Assessing Officer for de novo consideration. On ..... X X X X Extracts X X X X X X X X Extracts X X X X
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