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TMI Blog2022 (3) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... ice, but also in violation of the mandatory provisions as contemplated under Section 144B (7) (vii) (ix) of the Act. Hence, the impugned assessment order is not sustainable in law and the same is liable to be set aside. Writ petition is allowed setting aside the Assessment Order passed by the 2nd respondent and the matter is remitted back to the Assessing Officer for a fresh assessment after duly affording a reasonable opportunity of hearing the petitioner and then pass appropriate orders in accordance with law as expeditiously as possible. - Writ Petition No.25113 of 2021 - - - Dated:- 28-2-2022 - Honourable Sri Justice C. Praveen Kumar And Honourable Smt. Justice V. Sujatha For the Petitioner : N Vijay For the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner on 08.02.2021 calling for his explanation. In response thereto, the petitioner has submitted a detailed reply on 18.02.2021. Thereafter, the petitioner was issued a show cause notice as to why the assessment should not be completed as per the assessment order dated 26.09.2021 and directing him to file his objections, if any, on or before 27.09.2021. It is the further case of the petitioner that though he specifically requested for personal hearing through video conferencing, the impugned order of assessment dated 29.09.2021 came to be passed under Section 143 (3) read with Section 263 read with Section 144B of the Income Tax Act, 1961 without affording any opportunity of being heard through video conferencing. The same is challenge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere the request for personal hearing has been approved by the Chief Commissioner or the Director General, in charge of the Regional Faceless Assessment Centre, such hearing shall be conducted exclusively through video conferencing or video telephony, including use of any telecommunication application software which supports video conferencing or video telephony, in accordance with the procedure laid down by the Board; A reading of the above provision makes it clear that in a case where a variation is proposed in the draft assessment order or final draft assessment order or revised draft assessment order, an opportunity would be provided to the assessee by serving a notice, calling upon him to show cause as to why the assessment should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Assessment Scheme under Section 144B of the Act. A quasi judicial body must normally grant a personal hearing as no assessee or litigant should get a feeling that he was never given opportunity or deprived of an opportunity to clarify the doubts of the Assessing Officer or decision maker. In support of his contention, the learned counsel for the petitioner relied upon a judgment in Bharat Aluminium Company Ltd., v. Union of India (W.P.(C) No.14528 of 2021 and CM APPL.45702 of 2021, rendered by the High Court of Delhi at New Delhi), where in similar circumstances the High Court of Delhi, while holding that an assessee has a vested right to personal hearing, if an assessee asks for it, set aside the impugned final assessment order and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing has been envisioned and incorporated, it is imperative to observe principles of natural justice as stipulated. It is further held that when an assessee approaches with response to a show cause notice, the request made by an assessee, as referred to in clause (vii) of sub-section 7 of Section 144B, would have to be taken into account and it would not be proper, looking at the prescribed procedure with strong undercurrent to have hearing on a request after notice, to say that petitioner would have opportunity pursuant to Section 144C, which would intercept the operation of the scheme contained under Section 144B. In Swadeshi Cotton Mills v. Union of India 1981 AIR 818 (SC) , the Supreme Court held that where there has been non- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedure. This Court is also of the view that the use of the expression may in Section 144B (7)(viii) is not decisive. It is settled law that having regard to the context, the expression may used in a statute has varying significance. In some context, it is purely permissive, whereas in others, it may make it obligatory upon the person invested with the power to exercise it. The word may is capable of meaning must or shall in the light of the context. In fact, where a discretion is conferred upon a quasi judicial authority whose decision has civil consequences, the word may which denotes discretion should be construed to mean a command. .This Court is further of the view that a quasi judicial body must normally grant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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