2023 (3) TMI 561 - HC - Income Tax

Faceless assessment u/s 144B(1)(xvi)(a) - draft order was not prepared - HELD THAT - In the instant case, clearly, as per the instructions received by Mr Kumar, a draft order was not prepared. However, an income or loss determination proposal was prepared. Given this position, the provisions of Section 144B(6)(vii) and (viii) would get triggered, notwithstanding the fact that the draft order was not prepared by the respondents/revenue. We are of the view, that the best way forward would be to set aside the impugned assessment order, with liberty to the Assessing Officer (AO) to conduct the proceedings de novo, after according personal hearing to the petitioner/assessee and/or his authorised representative.

Summary

Issues:
1. Typographical error in the order dated 16.01.2023.
2. Relief sought by the petitioner in the writ petition.
3. Allegations of notices not being received by the petitioner.
4. Requirement of a draft assessment order in faceless assessment.
5. Instructions received by the respondents/revenue.
6. Provisions of Section 144B(6)(vii) and (viii) of the Income Tax Act, 1961.
7. Decision regarding the impugned assessment order.

Analysis:
1. The judgment addresses a typographical error in the order dated 16.01.2023, correcting the section reference from Section 144B(1)(xv) to Section 144B(1)(xvi)(a) of the Income Tax Act, 1961. The corrected order sets forth the substantive reliefs sought by the petitioner in the writ petition, including quashing of notices and assessment orders, along with a request for a writ of mandamus for a fair assessment process.

2. The petitioner alleged that despite various notices being issued, they did not receive them due to emails being directed to the spam folder and the absence of real-time alerts via SMS, which are standard practices. The petitioner also contended that in faceless assessment, a draft assessment order under Section 144B(1)(xvi)(a) should have been passed by the Assessing Officer (AO).

3. The respondents/revenue, through their counsel, clarified that a draft assessment order was not required as a variation was proposed in the show-cause notice, and an income or loss determination proposal was prepared for internal checks. The petitioner's counsel cited Section 144B(6)(vii) of the Act, emphasizing the right to request a personal hearing in such cases.

4. The judgment highlighted the provisions of Section 144B(6)(vii) and (viii) of the Act, which mandate providing a personal hearing through the National Faceless Assessment Centre upon request. Despite no draft order being prepared, the income or loss determination proposal triggered the requirement for a personal hearing, leading the court to set aside the impugned assessment order.

5. The court ordered the impugned assessment order dated 15.12.2022 to be set aside, with instructions to serve the income or loss determination proposal on the petitioner within two weeks. The petitioner would then have the opportunity to respond, following which a hearing would be conducted in accordance with the procedure under Section 144B(6)(viii) of the Act.

6. The writ petition was disposed of with the decision to conduct proceedings de novo after according a personal hearing to the petitioner. The judgment emphasized compliance with the prescribed procedures and closed the pending application, directing parties to act based on the digitally signed copy of the judgment.