2023 (10) TMI 1324 - HC - Income Tax

Validity of faceless assessment - violation of principles of natural justice and non-affording an opportunity of personal hearing - in personal hearing through video conferencing petitioner joined the VC but there were issues in the audio but used the chat box in order to communicate with the authority concerned - as per assessee conversation in the chat box reveals that owing to technical glitches, the petitioner did not get an effective opportunity of explaining the case orally since conversation took place through chat box and requests for rescheduling the video conference were turned down - HELD THAT - Issuing of a show cause notice and personal hearing is necessary before passing any adverse order against a person. It is a trite law that when the statute is silent, with no positive words in the Act or the Rules spelling out the need to hear the party whose rights or interests are likely to be affected, requirement to follow fair procedure before taking a decision must be read into the statute, unless the statute provides otherwise. The principles of natural justice operate in areas not covered by any law. They do not supplant the law of the land but only supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. The principles of natural justice need to be adhered in each and every case. It is a settled law that it is not permissible for any authority to jump over the compliance of natural justice on the ground that even if opportunity of hearing had been afforded, it would have served no fruitful purpose. As decided in VASUPUJYA INFRASTRUCTURES LLP 2022 (8) TMI 1455 - GUJARAT HIGH COURT it is not in dispute that in facts of the case no draft assessment along with show cause notice as required under section 144B(1) and section 144B(7) is given to the petitioner so as to enable the petitioner to give explanation for proposed addition during the hearing before the National Faceless Assessment Centre. Section 144B(1)(xii) provides that on receipt of show cause notice, assessee may furnish his response to the National Faceless Assessment Centre and as per clause (xiv), assessment unit shall make a revised draft assessment order after considering the response of the assessee and send it to the National Faceless Assessment Centre. As per the provisions of section 144B(7) in case of variation prejudicial to the assessee as proposed in the draft assessment order, the assessee is entitled to request for personal hearing and upon such request, the personal hearing may be provided by the authority, if the case of the assessee is covered by circumstances provided therein in exercise of powers under sub-clause (h) of clause (xii) of section 144B(7) of the Act, 1961. It can be safely be said that the impugned order was passed by the respondent in violation of principles of natural justice without affording an opportunity of personal hearing by not following the prescribed procedure laid down as per the provisions of section 144B of the Act, 1961 for Faceless assessment. In the result, this petition succeeds and is accordingly allowed. The impugned order of assessment passed by the respondent under Section 147 r.w.s.144B and demand notice under section 156 of the Act are quashed and set aside.

Summary

Issues Involved:
1. Violation of principles of natural justice.
2. Technical glitches during the video conference hearing.
3. Compliance with Section 144B of the Income Tax Act, 1961.

Summary:

Issue 1: Violation of Principles of Natural Justice
The petitioner argued that the impugned assessment order dated 30.09.2021 and the demand notice for the assessment year 2018-19 were passed in gross violation of the "principles of natural justice." The petitioner emphasized that issuing a show cause notice and providing a personal hearing is essential before passing any adverse order. The court reiterated that principles of natural justice must be adhered to in every case and cannot be bypassed on the presumption that no prejudice will be caused.

Issue 2: Technical Glitches During Video Conference Hearing
The petitioner requested a personal hearing through video conference, which was scheduled but could not be effectively conducted due to technical glitches. The petitioner communicated with the authority through a chat box, highlighting that the conversation was limited to procedural aspects and not the merits of the case. The court noted that the petitioner did not get an effective opportunity to explain the case orally due to these technical issues, and the request for rescheduling the video conference was turned down.

Issue 3: Compliance with Section 144B of the Income Tax Act, 1961
The court referred to Section 144B, which mandates a faceless assessment procedure, including the provision of a draft assessment order and an opportunity for a personal hearing through video conferencing. The court observed that the impugned order was passed without following the prescribed procedure under Section 144B, thereby violating the principles of natural justice.

Conclusion:
The court quashed and set aside the impugned assessment order and demand notice dated 30.09.2021. The respondent/Revenue was granted the liberty to proceed with the assessment under Section 144B after issuing a show cause notice-cum-draft assessment order and providing an opportunity of hearing to the petitioner. This exercise must be completed within 12 weeks from the date of receipt of the court's order. The court clarified that it did not examine the merits of the case.