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TMI Blog2024 (11) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... or short, the "IT Act") for the reason that the petitioner was not issued a show cause notice-cum-draft assessment order, as per requirement of the provisions of Section 144B of the IT Act, as retrospectively brought into effect from 01 April 2021 by the Finance Act, 2022. The case of the petitioner is premised on the provisions of Section 144B and more particularly clauses (xiv), (xix), (xx) and (xxii) of sub-section (1) requiring such procedure to be followed which, according to the petitioner, is completely overlooked and/or not applied in passing the impugned order. 3. Having noticed the nature of the challenge, the relevant facts need to be stated : The petitioner filed its return of income on 29 October 2018 for A.Y. 2018-19. Between the period 15 December 2020 to 30 December 2020, the case of the petitioner was selected for scrutiny assessment and appropriate notices came to be issued including on such dates. As the period in question was a period affected by Covid-19 Pandemic, the petitioner sought an adjournment on 22 December 2020 before respondent No.1. Subsequent thereto, as sought by respondent no.1, the petitioner furnished further information /details which was in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff by the Registrar of Companies. 5. It is on the aforesaid premise and in pursuance of the impugned assessment order, a demand notice dated 12 June 2021 was issued to the petitioner by which the petitioner was called upon to deposit an amount of Rs.4,68,20,176/- within a period of 30 days of the receipt of the said demand notice. 6. The petitioner, being confronted with the assessment order and the contents of the same recording that the petitioner was issued a show cause notice, made applications under the Right to Information Act, 2005 (for short, "RTI Act") so as to obtain a copy of the alleged show cause noticecum- draft assessment order as referred to in the assessment order. The petitioner's RTI application was disposed of by the CPIO (Circle 2) by an order dated 20 September 2021, recording that based on the electronic records available with the department, no show cause notice was available as also a proof of dispatch of the same could not be provided. It is thus the petitioner's case that the impugned assessment order recording that the petitioner was issued a show cause notice-cum-draft assessment order, was ex-facie contrary to the record and not correct. 7. It may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced on record, namely the proof of dispatch, email service details, etc. Such contentions as urged on behalf of the respondents have also been disputed by the petitioner in the rejoinder affidavit dated 25 April 2022, wherein the petitioner has annexed an extract of the electronic portal, pointing out all the communications which were received from the department, and which indicating that no show cause notice-cum-draft assessment order was ever issued to the petitioner. 10. Mr. Naniwadekar, learned counsel for the petitioner would urge that in the aforesaid facts, the primary contention of the petitioner is to the effect that the impugned order cannot be sustained and would be required to be quashed and set aside, being contrary to the provisions of Section 144B and more particularly clauses (xiv), (xix), (xx) and (xxii) of sub- section (1) of Section 144B of the IT Act. It is submitted that no show cause notice was issued, which was a necessary requirement to be adhered by respondent no.1 in passing the impugned order, which was to be prejudicial to the petitioner. It is submitted that there is no manner of doubt that an arbitrary procedure has been followed, in complete ignora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment Centre shall examine the draft assessment order in accordance with the risk management strategy specified by the Board, including by way of an automated examination tool, whereupon it may decide to - (a) finalise the assessment, in case no variation prejudicial to the interest of assessee is proposed, as per the draft assessment order and serve a copy of such order and notice for initiating penalty proceedings, if any, to the assessee, along with the demand notice, specifying the sum payable by, or refund of any amount due to the assessee on the basis of such assessment; or (b) provide an opportunity to the assessee, in case any variation prejudicial to the interest of assessee is proposed, by serving a notice calling upon him to show cause as to why the proposed variation should not be made; or (c) assign the draft assessment order to a review unit in any one Regional Faceless Assessment Centre, through an automated allocation system, for conducting review of such order. (xvii) ..... (xix) the National Faceless Assessment Centre shall upon receiving suggestions for variation from the review unit, assign the case to an assessment unit, other than the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal, the fact-finding authority, that reads thus : "We will straightaway agree with the assessee's submission that the Income-tax Officer had not given to the assessee proper opportunity of being heard." 2. That the assessee could have placed evidence before the first appellate authority or before the Tribunal is really of no consequence for it is the assessment order that counts. That order must be made after the assessee has been given a reasonable opportunity of selling out his case. We, therefore, do not agree with the Tribunal and the High Court that it was not necessary to set aside the order of assessment and remand the matter to the assessing authority for fresh assessment after giving to the assessee a proper opportunity of being heard. 3. Two questions were placed before the High Court, of which the second question is not pressed. The first question reads thus : "1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in not setting aside the assessment order in spite of a finding arrived at by it that the Income-tax Officer had not given a proper opportunity of hearing to the assessee ?" 4. In our opinion, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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