2022 (5) TMI 376 - HC - Income Tax

Validity of National faceless assessment - Non-compliance of the provisions contained in Section 144B - HELD THAT - Main thrust of learned counsel for petitioner at the time of submission of his case on merits is that non- following of the procedure prescribed under Section 144B of the Act of 1961 will make the proceedings non-est. The Ministry of Law and Justice (Legislative Department), New Delhi issued Gazette Notification dated 30.3.2022 wherein sub-section (9) of Section 144B of the Act of 1961 has been omitted w.e.f. 1.4.2021. By virtue of amendment brought in by the Legislature, the ground raised before this Court is not available as said provision itself stood omitted from the statute book with retrospective effect. Petitioner is having efficacious alternative statutory remedy of filing appeal before the appellate authority who can consider and decide other issues raised in this writ petition. We not inclined to entertain this writ petition as the petitioner is having efficacious alternate statutory remedy of appeal and it is accordingly dismissed. Petitioner may approach Appellate Authority under the Act of 1961 raising all grievances and grounds, as raised in this petition. If petitioner prefers an appeal within a period of thirty days from today, the Appellate Authority shall consider and decide the same on its own merits in accordance with law.

Summary

Issues:
Petitioner challenges assessment order under Section 143 (3) of the Income Tax Act, 1961, alleging non-compliance with procedure under Section 144B, seeking various reliefs. Respondent argues for dismissal citing availability of appeal under Sections 246A, 254, and 260A of the Act.

Analysis:
The petitioner, a company engaged in trading and manufacturing of precious metals and stones, filed a writ petition challenging the assessment order passed under Section 143 (3) of the Income Tax Act, 1961. The petitioner contended that the assessment proceedings were conducted under the Faceless Assessment Scheme, but the procedure mandated by Section 144B was not followed. Section 144B requires the issuance of a draft assessment to provide the assessee an opportunity to respond before finalizing the assessment. The petitioner argued that the absence of this opportunity violated their rights and rendered the assessment order invalid.

The petitioner highlighted that the introduction of Section 144B aimed to reduce human interference in tax assessments and enhance transparency. The petitioner emphasized that the National Faceless Assessment Centre had acknowledged procedural lapses in assessments without serving draft assessment orders or providing personal hearings to assesses. The petitioner cited relevant judgments from the Delhi High Court and the High Court of Gujarat, emphasizing the importance of following due process in assessment proceedings under the Faceless Scheme.

In response, the respondent argued that the assessment order was appealable under Sections 246A, 254, and 260A of the Act, and the petitioner should have pursued the available statutory remedies before approaching the High Court directly. The respondent contended that the writ petition should be dismissed on grounds of premature filing without exhausting the appellate process.

The Court considered the arguments presented by both parties and examined the documents on record. The Court noted that the Ministry of Law and Justice had issued a Gazette Notification omitting sub-section (9) of Section 144B of the Act with retrospective effect from 1.4.2021. The Court observed that this legislative amendment rendered the ground raised by the petitioner regarding non-compliance with Section 144B moot. The Court concluded that the petitioner had an alternative statutory remedy of filing an appeal before the appellate authority, which could address the issues raised in the writ petition.

Therefore, the Court dismissed the writ petition, emphasizing that the petitioner should avail themselves of the statutory appeal process within thirty days. The Appellate Authority was directed to consider the appeal on its merits in accordance with the law.