2023 (2) TMI 270 - HC - Income Tax

Validity of order of assessment passed - non-service of show cause notice cum draft assessment order before finally making an assessment - HELD THAT - Except the reply of the assessee which the respondent construe to be the opportunity as required to be granted under the law he has not been availed much less the offering of the personal hearing and issuance of the draft order after getting approval of the higher authority. The Assessing officer was promoted during April 2021 and therefore, was holding an additional charge in addition to his substantial charge with minimal supporting staff and without adequate infrastructural facilities from July 2021 and that hardly is the ground for non-compliance of the provision of the law. An attempt is made to explain that the AO needed to complete many time barring assessment cases and the penalty cases in both his charges and the above was not the only case. These according to us are very lame excuses and surely not expected to be given by the respondent authority. The least it could have done was to accept the aspect by seeking the permission to freshly initiate such action. This is not the case of failure of the system or any other shortcomings which had hampered the officer not allow his request. It is he who was short of time as the time limit of assessment was getting over by 30.9.2022. Even if non-issuance of show cause notice along with the draft assessment order was neither willful nor wanting the fact remains that the it must be supplied and hence it is clear and unequivocal act of breach of principles of natural justice warranting interference at the hands of the Court. Resultantly, the order of assessment passed in the instant case on 29.9.2021 is quashed and set aside along with the consequential setting aside of the penalty. The respondent is permitted to pick up the threads from where it was left by denying the opportunity to the petitioner. Let the sufficient opportunity as contemplated under the law be given.

Summary

Issues involved:
Challenge to assessment order for A.Y. 2018-2019 due to non-availment of opportunity while finalizing the order.

Detailed Analysis:
The petition challenged the assessment order for the Assessment Year (A.Y.) 2018-2019, highlighting the absence of an opportunity during the finalization of the order. The petitioner contended that the Assessing Officer disregarded binding precedents and statutory requirements, resulting in an addition of Rs. 11.47 Crore without issuing a show cause notice or providing a draft assessment order. The petitioner's representative cited a Bombay High Court decision in support of the argument. The Court granted interim relief and directed notice for final disposal by a specified date, emphasizing the importance of statutory compliance and natural justice principles.

The petitioner, an Orthopaedic Surgeon running a Spine Hospital, filed an income return offering a specific total income. Subsequently, the respondent assessed the income at a significantly higher amount without serving a show cause notice cum draft assessment order, depriving the petitioner of an opportunity for a personal hearing. The respondent refuted the allegations, stating that the delay in submission by the petitioner led to the assessment process timeline constraints under the faceless assessment scheme.

Both parties extensively presented their arguments, focusing on the central issue of the non-service of the show cause notice cum draft assessment order before the final assessment. The Court acknowledged the absence of the required notice and order, emphasizing that the respondent's justifications for the delay were insufficient. Despite the Assessing Officer's workload and time constraints, the Court deemed the excuses inadequate, emphasizing the importance of fairness and statutory compliance over administrative convenience.

Consequently, the Court quashed the assessment order and associated penalty, directing the respondent to restart the process by providing the necessary notice and order within a specified timeframe. The petitioner committed to cooperation and avoiding unnecessary adjournments. The Court allowed the petition without imposing any costs, emphasizing the significance of adhering to procedural fairness and statutory requirements in assessment proceedings.