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TMI Blog2022 (8) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... has escaped assessment , there is no discussion on any of the materials, which were placed by the assessee along with the reply dated 9th April, 2022. Thus, it can be safely held that the order dated 13th April, 2022 passed under Section 148A(d) of the Act is not sustainable and liable to be set aside. The legal principle that can be culled out from the aforementioned decisions is that the opportunity which is provided for under the scheme of the Act should be a meaningful and effective opportunity as such opportunity is not an empty formality. The assessee is entitled to be heard and such hearing should be a purposeful and effective hearing and not for the sake of showing as if a hearing was conducted. All the aforementioned decisions and the law which has been pointed out therein will fully enure in favour of the appellant consequently to hold that the order passed by the assessing officer dated 13th April, 2022 under Section 148A(d) of the Act would call for an interference. The appeal is allowed and the connected application (I.A. No. CAN 2 of 2022) is disposed of. The order passed in the writ petition is set aside. Consequently, the writ petition is allowed and the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. The details of the information and the enquiry was enclosed as Annexure A to the said notice. The appellant was required to show cause as to why, in view of the details contained in Annexure A , a notice under Section 148 of the Act should not be issued. The assessee was granted liberty to submit its response with supporting documents electronically in e-proceeding facility on or before 29th March, 2022. The annexure to the said notice had furnished the following information:- On perusal of information received from insight portal downloaded from the site it has been revealed that the assessee has made transaction through fund transfer for Rs.36,00,000/- from Winsome Commotrade Pvt. Ltd. in the form of accommodation entry and was the beneficiary of transaction, which remained unexplained and prima facie requires verification. You are requested to provide details of transaction in the bank statements highlighting the alleged transaction required to be verified. Also file necessary evidences for the said transaction for establishing genuineness, creditworthiness of the transaction and source of fund thereof. In view of the above, an opportunity is being offered to explain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dural irregularity, violation of principles of natural justice, non-consideration of the request made in the reply dated 9th April, 2022, non-consideration of the documents appended along with the said reply dated 9th April, 2022 and no-ncompliance of the request to provide the complete information about the insight portal report based on which the notice under Section 148A(b) of the Act was issued. 11. The learned Single Bench has dismissed the writ petition on the ground that appropriate procedure has been followed by the assessing officer. On going through the material papers placed before us, we have a different opinion. We substantiate such conclusion with the following reasons. 12. Soon after the notice under Section 148A(b) of the Act dated 22nd March, 2022 was issued, the assessee was required to submit its reply not later than 29th March, 2022. The assessee sought for an adjournment and reply was directed to be submitted by 11.00 a.m. on 12th April, 2022 and the assessee had complied with the direction and submitted the reply dated 9th April, 2022. On reading the reply dated 9th April, 2022, it is seen that it is not a comprehensive reply because the assessee has sou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A(d) of the Act is not sustainable and liable to be set aside. 14. The learned Advocate appearing for the appellant placed reliance on the decision of the Punjab and Haryana High Court in the case of Sohan Singh, Etc. Vs. - Hans Raj, reported in AIR 1960 P H 34 to explain the meaning of the expression hearing . In the said decision, it was held to hear implies that there is someone before the Court to speak; in a broad general sense, the expression hearing is applied to the consideration of a case before a person clothed with judicial or quasi-judicial powers at the several stages of its progress, subsequent to its inception. This decision undoubtedly explains in lucid terms the meaning of the expression hearing . However, there are decisions, which have held that an opportunity of hearing will not always include an opportunity of personal hearing. In any event, we need not stretch the matter thus far to take a decision in this appeal. 15. The learned Advocate referred to a decision of the Hon ble Supreme Court in Bishal Ashwin Patel Vs. Assistant Commissioner of Income Tax Circle 25(3) and Ors. reported in 2022 SCC OnLine SC 366 for the proposition that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had passed an order under Section 148A(d) of the Act in great haste and in gross violation of the principles of natural justice as the assessee therein was not given reasonable time to file reply. Further the Court noted that Section 148A(b) permits the assessing officer to suo motu provide upto 30 days period to an assessee to respond to a show cause notice issued under Section 148A(b) which period may, in fact, be further extended upon an application made by the assessee in this behalf and such period given to the assessee is excluded in computing the period of limitation for issuance under Section 148A of the Act in terms of the 3rd proviso under Section 149 of the Act. In the said case also, the assessee had file their reply by 31st March, 2022 and the same was available on record. However, the reply was not considered as per the mandate contained in Section 148A(c) thereby violating the duty cast upon the assessing officer. In paragraph 16 of the said decision the significance of issuance of show cause at a stage prior to issuance of reassessment notice under Section 148 of the Act has been pointed out in the following terms: This Court is of the opinion that significan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. Be that as it may, the opportunity of hearing to be provided should be reasonable and not illusory . 6.Considering all these factors, we are of the view that the assessee should be granted an opportunity by the Assessing Officer in terms of Clause (b) of Section 148A of the Act, which provides for an opportunity of being heard to the assessee. . 17. Thus, the legal principle that can be culled out from the aforementioned decisions is that the opportunity which is provided for under the scheme of the Act should be a meaningful and effective opportunity as such opportunity is not an empty formality. The assessee is entitled to be heard and such hearing should be a purposeful and effective hearing and not for the sake of showing as if a hearing was conducted. 18. All the aforementioned decisions and the law which has been pointed out therein will fully enure in favour of the appellant consequently to hold that the order passed by the assessing officer dated 13th April, 2022 under Section 148A(d) of the Act would call for an interference. 19. In the result, the appeal is allowed and the connected application (I.A. No. CAN 2 of 2022) is disposed o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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