2022 (11) TMI 1411 - HC - Income Tax

Recovery proceedings - addition u/s 68 - whether petitioner was duly intimated about the proceedings and show-cause notices received? - HELD THAT - As the respondents have proceeded to pass the impugned order on the premise that the petitioner has not submitted his response/reply or documents to the show-cause notices. In this regard, in the light of the specific assertion on the part of the petitioner that the said notices were not received by him, though the said contention is opposed by the respondents, by adopting a justice oriented approach and to provide one more opportunity to the petitioner to submit his reply to the show-cause notices along with the documents in support of his claim we deem it just and appropriate to set aside the impugned order and remit the matter back to the respondent for reconsideration afresh in accordance with law. Applicability of E-Assessment Scheme, 2019 - As in view of findings above that the impugned assessment order deserves to be set aside and the matter be remitted back to the respondents for reconsideration afresh, the issue / question regarding the requirement of following the scheme in respect of the proceedings, which were initiated after to coming into force of the said Scheme of 2019 may not be relevant for adjudication of present petition. In so far as the contention urged by the petitioner, the judgment of the Apex Court in the case of the Orissa Corporation 1986 (3) TMI 3 - SUPREME COURT it is needless to state that after providing an opportunity to the petitioner to submit its reply and documents to the aforesaid show-cause notices, the respondents would necessarily have to follow the procedure prescribed in law bearing in mind the judgment and other judgments of the Apex Court rendered in relation to Section 68 of the Income Tax Act, 1961.

Summary

Issues:
1. Validity of recovery notice and assessment order for A.Y. 2017-18.
2. Applicability of CBDT Circulars in relation to Section 115BBE of the IT Act.
3. Compliance with E-Assessment Scheme, 2019.
4. Violation of principles of natural justice in the assessment process.

Analysis:

Issue 1: Validity of recovery notice and assessment order for A.Y. 2017-18
The petitioner sought to quash the recovery notice and assessment order dated 04.12.2019. The petitioner argued that the proceedings were initiated before the E-Assessment Scheme, 2019 came into force, and thus, the mandatory procedures under the scheme were not followed. The petitioner contended that show-cause notices were not received, leading to a violation of natural justice. The petitioner also challenged the invocation of Section 68 of the Income Tax Act, 1961, emphasizing the need for examining creditors as per legal precedents.

Issue 2: Applicability of CBDT Circulars
The petitioner requested a declaration that certain CBDT Circulars were not applicable to the relevant assessment year. The petitioner argued that as Section 115BBE of the IT Act became effective from 01.04.2017, the Circulars produced were not relevant to the period from 01.04.2016 to 31.03.2017. This issue raised questions about the interpretation and application of statutory provisions in the context of the assessment.

Issue 3: Compliance with E-Assessment Scheme, 2019
The petitioner contended that the E-Assessment Scheme, 2019 procedures were not adhered to by the respondents. The petitioner highlighted the necessity of following the prescribed procedure under the scheme, including the delivery of notices and real-time alerts. The failure to comply with these requirements was argued to be a procedural irregularity affecting the validity of the assessment order.

Issue 4: Violation of principles of natural justice
The petitioner asserted that the assessment process violated principles of natural justice by not providing an opportunity to respond to show-cause notices and present arguments. The petitioner argued that a lack of communication hindered the ability to participate effectively in the proceedings, emphasizing the importance of a fair and transparent process in tax assessments.

In the judgment, the court allowed the petition, setting aside the assessment order and recovery notice. The matter was remitted back to the respondents for reconsideration in accordance with the law. The court emphasized the need for following legal procedures, providing opportunities for the petitioner to respond, and ensuring compliance with statutory requirements and judicial precedents in the reassessment process.