9911796707
TMI Blog2024 (5) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... 2024 passed under Section 143(3) read with Section 144B of the Income Tax Act, 1961 for A.Y. 2022-23 is wholly ex parte. 3. While proceedings had been initiated in October 2023, no date was fixed in that. The first notice in that regard was uploaded on the web portal of the revenue authorities on 19.03.2024, fixing date 22.03.2024. However, no intimation was given to the petitioner about such notice inasmuch as neither that fact was communicated to the petitioner on his registered e-mail ID or through SMS mode. The petitioner first received that intimation on his mobile phone on 28.03.2024. Reacting to that the petitioner moved an application through online mode on 28.03.2024 itself, seeking time. Without considering that application, the impugned assessment order has been passed on 28.03.2024 itself. 4. If facts are true, we do not see how such assessment order could be passed or be sustained even in limited exercise of judicial review. 5. Sri Manu Ghildyal, learned counsel for the revenue prays for and is granted five days' time to complete instructions. 6. Put up as fresh on 13.05.2024, showing the name of Sri Manu Ghildyal also as counsel for the respondent. 7. Ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order sheet produced by the revenue bring out the same in the manner narrated above. Thus, even if it is assumed, the e-mail communication 19.03.2024 was issued to and served on the petitioner, only two day time was granted to the assessee to respond. The inadequacy of the time granted may also not hold us back any longer. The order sheet clearly brings out and no proceeding whatsoever took place on the date fixed 22.03.2024. In that regard, we find it relevant to extract the order sheet entry dated 19.03.2024 and 27.03.2024. The same reads as below : 19/03/2024 Show Cause Notice for Proceeding generated u/s 143(3) of Income Tax Act, 1961 National Faceless Assessment Centre GHH INDIA MINING AND TUNELLING EQUIPMENT PRIVATE LIMITED AAGCG5759B_Show Cause Notice for Proceedings u/s 143(3)_1062937 622(1)_1903202 4.pdf Notings/Remarks : Hearing date fixed on or before 22-Mar-2024 by 03:43 P.M. Signature : 27/03/2024 ILDP submitted for Approval AO - Assessment Unit RANGE - Assessment Unit Notings/Remarks : ILDP submitted for approval. Signature : 8. Thus, according to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribes that opportunity of personal hearing may not be granted by the Assessing Authority unless specifically requested for by the petitioner, in writing. To do that would be to give meaning to the word "request" used under Section 144B(6)(vii) and (viii), larger and much wider than intended by the legislature. Under the general Scheme of the Act, assessment orders are to be passed after giving opportunity to the assessee to present his case. To that extent, the revenue does not dispute the contention of the assessee and it does not claim a right to frame ex parte assessment orders. It contends, the opportunity for personal hearing is not inherent in the right to participate in the assessment proceedings. The assessee may participate in the assessment proceedings by furnishing his written reply. If however he seeks to avail opportunity of personal hearing, he may necessarily make a specific request, in that regard. 7. That may never be accepted. Assessment proceedings by very nature, often involve disputed question of facts and law. By merely submitting written explanations, facts and law may not become clear, on their own. Both with respect to computation of taxable receipts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rte order wrongly drawn on ex parte basis, the appeal power would remain seriously restricted. The appeal authority would be forced to entertain the appeal on all merit issues and exercise the powers of the Assessing Officer. While it is not in doubt that the appeal authority has all powers of Assessing Officer, at the same time, it is not the Scheme of the Act to require the job of the Assessing Authority to be routinely performed by the First Appeal Authority. If the opportunity of personal hearing is to be declined by the Assessing Officer by way of a normal practice, we foresee such situations are bound to arise in the normal course of things. In any case, the assessee would have lost one opportunity and tier of appeal, for no fault on its part. 11. Therefore, the word "request" used under Section 144B(6)(vii) and (viii) only imply, where an assessee may furnish his written reply to the show-cause notice but not opt to avail opportunity of personal hearing, it may not be mandatory for the Assessing Officer to grant such opportunity of personal hearing if he intends to accept the explanation furnished. He may pass appropriate ex parte order accepting the explanation furnished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , even if the assessee had failed to avail that opportunity and failed to apply for adjournment on that date, it never became to the assessing authority to then pass no order on the date 22.03.2024 and to proceed against the assessee wholly ex parte, thereafter. 12. As noted above, the assessment order dated 28.03.2024 has been passed five days after the last date fixed that too without conducting any proceeding involving the assessee. Neither on 22.03.2024 nor on subsequent dates there is record of any proceeding or any other date fixed. 13. Accordingly, the order dated 28.03.2024 is set aside. The petitioner may treat that order as final show-cause notice and submit its reply thereto within a period of one week and not later. Thus, written reply, if any, may be filed by the petitioner by 20.05.2024. If the Assessing Officer is inclined to accept the explanation furnished by the assessee, in entirety, he may pass the consequential order without fixing any further date for hearing as the petitioner has not "requested" for the same. If however, he proposes to reject the explanation furnished by the petitioner, he would necessarily fix a date for hearing with at least 15 days prior ..... X X X X Extracts X X X X X X X X Extracts X X X X
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