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TMI Blog2025 (4) TMI 1629X X X X Extracts X X X X X X X X Extracts X X X X ..... /s : Mr. D.V. Pathy, Sr. Advocate Mr. Sadashiv Tiwari, Advocate Mr. Hiresh Karan, Advocate Ms. Shivani Dewalla, Advocate Ms. Prachi Pallavi, Advocate For the Respondent/s : Ms. Archana Sinha @ Archana Shahi, Sr. Adv. (In Civil Writ Jurisdiction Case No. 17742 of 2022) For the Petitioner/s : Mr. D.V. Pathy, Sr. Advocate Mr. Sadashiv Tiwari, Advocate Mr. Hiresh Karan, Advocate Ms. Shivani Dewalla, Advocate Ms. Prachi Pallavi, Advocate For the Respondent/s : Ms. Archana Sinha @ Archana Shahi, Sr. Adv. CAV JUDGMENT (PER: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD) Heard Mr. D.V. Pathy, learned Senior Counsel for the petitioner and Ms. Archana Sinha, learned Senior Counsel for the respondents. 2. These four writ applications have been taken up for consideration together on the request of learned counsel for the parties and are being disposed of by this common judgment. CWJC No. 16697 of 2023 3. This writ application has been preferred seeking the following reliefs:- "i) the notice dated 31.03.2021 (as contained in Annexure-2) issued by the respondent no. 2 under Section 148 of the Income Tax Act, 1961 for the Assessment Year 2017-18 be quashed. ii) the order dated 31.03.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lications, the grievance of the petitioner is that the impugned order dated 29.09.2022 has been passed by respondent no. 2 without consideration of the detailed written submission and also without recording reasons solely on the basis of an ex-parte order of assessment passed in derogation of binding Circular No. 19/2019 dated 14.08.2019 and the Notification No. 61/2019 dated 12.09.2019. 6. It is the common contention of learned counsel for the parties that the fate of these two writ applications would depend upon the outcome of the first two writ applications i.e. CWJC No. 16697 of 2022 and CWJC No. 7244 of 2022. For the purpose of reference hereunder, we will take the records of the lead case being CWJC No. 16697 of 2022. Submissions on behalf of the Petitioners 7. Mr. D.V. Pathy, learned Senior Counsel submits that in the present case the Assessing Officer has acted in complete defiance of the Notification No. 61 of 2019 issued by the Central Board of Direct Taxes (in short 'CBDT') on 12th September, 2019, a copy of which has been enclosed as Annexure '16' to the writ application. It is pointed out that the CBDT has notified Income Tax E-Assessment Scheme, 2019. It has been i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued manually but only after recording reasons in writing in the file and prior written approval of the Chief Commissioner/Director General of Income Tax. 10. In the aforementioned background of Annexure '16' and Annexure '17' to the writ application, learned Senior Counsel for the petitioner has submitted that in this case, respondent no. 2 issued a notice under Section 148 of the Act of 1961 for the assessment year 2017-18. The said notice has been signed manually. The petitioner filed a return under Section 148 of the Act of 1961 on 09.01.2022. The respondent no. 2 issued another notice dated 08.03.2022 under Section 143 (2) read with Section 147 of the Act of 1961 for the assessment year 2017-18 and issued letter dated 11.03.2022 for the assessment year 2017-18. Respondent no. 2 further issued a show cause notice dated 20.03.2022 and all these correspondences have been made manually. Learned Senior Counsel has drawn our attention towards the assessment order (Annexure '15') and the notice of demand under Section 156 of the Act of 1961 attached therewith to show that these documents have been signed by hand and not digitally. It is submitted that in view of the scheme and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the complaint while passing the assessment order. Learned Senior Counsel has relied upon the judgment of the Hon'ble Supreme Court in the case of Andaman Timber Industries versus Commissioner of Central Excise, Kolkata-II reported in (2016) 15 SCC 785, (paragraph '6') wherein it has been held that not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order a nullity inasmuch as it amounted to violation of the principles of natural justice. 14. Learned Senior Counsel, therefore, submits that the impugned order of assessment has been passed by respondent no. 2 in violation of the principles of natural justice, therefore, it will come within the meaning of jurisdictional error, hence, liable to be interfered with by this Court under Article 226 of the Constitution of India. Submissions on behalf of the Department 15. On the other hand, Ms. Archana Sinha, learned Senior Counsel for the Department has opposed the writ application firstly on the ground that the petitioner has got an alternative equally efficacious remedy of appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portunity to the assessee. In the said case, the impugned order passed by the Adjudicating Authority specifically mentioned that such an opportunity was sought by the assessee. It is, therefore, submitted that the present case is completely distinct and different from that of Andaman Timber Industries (supra). In such circumstance, it cannot be said that the impugned order of assessment has been passed in violation of principles of natural justice. Consideration 20. We have heard learned Senior Counsel for the parties and have perused the records. So far as the submissions with regard to the non-signing of the notices and orders digitally by respondent no. 2 is concerned, we find no merit in the submissions of learned Senior Counsel for the petitioner. On record, we have found that the communication dated 31.03.2022 forms part of Annexure '15' to the writ application. It has been digitally signed and contains DIN. 21. In the opinion of this Court, the whole case of the petitioner would depend upon the success of his submission that in this case, the Department had not given him any opportunity to cross-examine the complainant. 22. The Hon'ble Supreme Court in the case of Godrej ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned, the Circular no doubt states in paragraph '4' that "Any communication which is not in conformity with Para-2 and Para-3 above, shall be treated as invalid and shall be deemed to have never been issued." 24. Paragraph '2' makes it mandatory that no communication shall be issued by any authority relating to assessment/appeals/orders/statutory or otherwise, exemptions, inquiry or investigation, verification of information, penalty, prosecution, rectification, approval etc. to the assessee or any other person, on or after the first day of October 2019 unless a computer generated Document Identification Number (DIN) has been allotted and is duly quoted in the body of such communication. However, paragraph '3' of the Circular No. 19 of 2019 dated 14th August, 2019 carries out certain exceptional circumstances such as- (i) when there are technical difficulties in generating/allotting/quoting the DIN and issuance of communication electronically; or (ii) when communication regarding enquiry, verification etc. is required to be issued by an income-tax authority, who is outside the office, for discharging his official duties; or (iii) when due to delay in PAN migration, PAN is ly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no contention of the petitioner that the online service of orders-letter present at page number 108 of the writ application (CWJC No. 16697 of 2022) has not been served upon the petitioner. It is, therefore, evident that on the same date, the defect was cured, therefore, all issues raised in this regard by the petitioner would liable to fail. 28. The second contention of learned Senior Counsel is that the revenue proceeding justified in relying upon the complaint and the statement of the complainant without giving an opportunity to the petitioner to cross-examine the complainant. It is submitted that in the present case, the complaint which is undated and unsigned has been made basis of the re-assessment proceeding. 29. This Court has gone through the assessment order. It contains the reason for re-opening of the assessment year 2017-18 relevant to financial year 2016-17. It is based on information passed on to the office and after analysis of the said information. The reason for reopening of the assessment was made known to the petitioner and the petitioner has been made available a copy of the complaint-information. The petitioner was served with a show cause notice to expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 47763379.48 +Rs. 7526423 +Rs. 603455 + Rs. 54000 = Rs. 5,59,47, 257/-." 30. Neither from the assessment order nor from the averments made in the writ application, it would appear that in this case, the Assessing Officer has examined the complainant in course of the proceeding. The petitioner has placed on record its written submissions. In paragraph '8' and '9' of the written submission, the petitioner has mentioned the contents of the complaint and the fact that the complainant had also filed handwritten volumes of certain transactions. In his written submissions, the petitioner admits that the complaint contains a handwritten volume of certain transactions. He has made a submission that unless, the complaint along with handwritten volumes are shown to have a rational connection with the business carried out by the petitioner, the same cannot form a basis of re-assessment. He has sought to cross- examine the complainant and relied upon the judgment of the Hon'ble Supreme Court in the case of Andaman Timber Industries (supra). 31. It is evident from his submissions that the petitioner was provided with xerox copies of the information/complaint and the voluminous documents sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e documents showing transactions of the firm were made available to the petitioner. The impugned order is not based on any examination of the complainant. In fact, there is no recording of the statement of the complainant or any other witness. The impugned order of assessment is based upon the materials which came to the notice of the Assessing Officer. After analysing the same, when the Assessing Officer was of the view that despite supply of reason of proceedings and other relevant documents to the assessee as well as sufficient opportunity, the assessee has failed to prove and substantiate that how undisclosed sales amount have been accounted in the books of accounts for the assessment year 2017-18, he has passed the impugned order. 34. In the case of Bharat Petroleum Corporation vs. N.R. Vairamani and Anr. reported in (2004) 8 SCC 579, the Hon'ble Supreme Court has put a word of caution when the Court opined that the judgment of the Court should not be cited like a Euclid's theorem as a slight change in the facts of the case would make a sea difference in the opinion of the Court. We extract that part of the observation of the Hon'ble Supreme Court in paragraph '9' of its judg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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