2021 (9) TMI 1108 - HC - Income Tax

Validity of assessment order - Breach of the provisions of the Faceless Assessment Scheme, 2019 - non granting of personal hearing - non furnishing of draft assessment order - HELD THAT - On the question of issue of non granting of personal hearing, the notices dated 18th January, 2021 and 1st February, 2021 both provided that petitioner may seek personal hearing so as to make oral submissions through video conferencing. Petitioner in his reply dated 26 th January, 2021, 27th January, 2021 and 5th February, 2021 has sought personal hearing. Notwithstanding this request respondent has neither granted personal hearing nor stated in the assessment order why the personal hearing was not granted. On this ground alone, in our view, the assessment order dated 2nd March, 2021 requires to be set aside. Non furnishing of draft assessment order , in the assessment order it is stated a show cause notice has been issued on 18/01/2021 for compliance on 22/01/2021 and again a final show cause notice with draft assessment order has been issued on 01/02/2021 for compliance on 05/02/2021. In response, the assessee has submitted the submission which has been perused . Though in the assessment order it is stated that draft assessment order was provided with show cause notice dated 1st February, 2021, from the affidavit in reply it appears that the draft assessment order was generated in ITBA system only on 25th February, 2021. As noted earlier no draft assessment order has been issued at all let alone on 1st February, 2021. The notice dated 1st February, 2021, as stated earlier, is seeking further documentary evidences and those evidences sought are for the first time. When respondent is seeking documentary evidences, that communication by no stretch of imagination can be even referred to as a draft assessment order. The Faceless Assessment Scheme, 2019 as per the circular dated 13th August, 2020, provides that where a modification is proposed, the National e-Assessment Centre shall provide an opportunity to the assessee by serving a notice calling upon him to show cause as to why the assessment should not be completed as per draft assessment order. This has not been complied with. This is one more reason, in our view, for interfering. Thus the assessment order not having been passed in conformity with the requirements of the Faceless Assessment Scheme, 2019 has to be treated as non-est and shall be deemed to have never been passed.

Summary

Issues:
1. Compliance with the Faceless Assessment Scheme, 2019.
2. Granting of personal hearing to the petitioner.
3. Issuance of draft assessment order in accordance with legal provisions.

Comprehensive Analysis:

Compliance with the Faceless Assessment Scheme, 2019:
The petitioner had filed returns for AY 2018-2019 and received a notice initiating scrutiny assessment. Subsequently, notices were issued in January 2021, calling upon the petitioner to provide further details and documentary evidence. The High Court noted that these notices were not draft assessment orders but requests for additional information. The petitioner argued that the assessment order passed in March 2021 was in breach of the Faceless Assessment Scheme, as the request for a personal hearing was ignored, and a mandatory draft assessment order was not issued. The Court held that the assessment order was issued without clear application of mind, and as per the Scheme, any assessment order not passed in conformity should be treated as non-est.

Granting of Personal Hearing:
The notices provided the petitioner with the option to seek a personal hearing for making oral submissions through video conferencing. Despite the petitioner's repeated requests for a personal hearing in responses dated January and February 2021, the respondent did not grant the same nor provided reasons for not doing so. The High Court emphasized that the failure to grant a personal hearing, especially when requested by the petitioner, was a significant ground for setting aside the assessment order.

Issuance of Draft Assessment Order:
While the assessment order mentioned the issuance of draft assessment orders on January 18 and February 1, 2021, it was revealed that the draft assessment order was generated in the ITBA system only on February 25, 2021. The Court noted that no draft assessment order was issued at all, let alone on February 1, 2021. The communication seeking further documentary evidence cannot be considered a draft assessment order. The failure to comply with the requirement of serving a notice with a draft assessment order as per the Scheme was another reason cited for interfering with the assessment order.

In conclusion, the High Court quashed and set aside the assessment order dated March 2, 2021, along with the consequential notices of demand and penalty. The respondents were directed to take appropriate steps in accordance with the law, and the petition was disposed of.