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TMI Blog2022 (9) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... lines afresh in all matters and undertake that the timelines so set out, will be adhered to scrupulously. Denial of natural justice - non providing of personal hearing - HELD THAT:- As passing of the assessment order without a personal hearing, moreover attempting to justify the same, is not proper and in my view, vitiates the assessment order, which is set aside. A link for personal hearing shall be sent to the petitioner and the petitioner shall be heard within a period four weeks. An order of assessment shall be passed within a period of eight weeks from the date of conclusion of personal hearing. Since the petitioner states that the time granted for filing reply at the first instance was inadequate, the petitioner shall also be permitted to file additional reply upon conclusion of the personal hearing. The entirety of the exercise as aforesaid shall be completed within a period of 90 days from the date of issue of certified copy of this order. The writ petition is allowed in the above terms. - W.P. Nos.12572, 13580, 13821, 13990, 12309, 14118, 14206, 15235, 21334, 12024 of 2021 & 3380 of 2022 - - - Dated:- 20-7-2022 - And W.M.P.Nos.17472, 13369, 13371, 20110, 144 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) assign the draft assessment order to a review unit in any one Regional e-assessment Centre, through an automated allocation system, for conducting review of such order. 3.Admittedly, there have been violations of timelines as well as procedure in the framing of the assessments, both on the part of the petitioners as well as the respondent/Income Tax Department. One reason for this is the pandemic that stood in the way of proper and timely compliance and secondly, lack of familiarity with the new procedure that had been introduced. For both the aforesaid reasons, the learned counsels for the petitioners as well as the learned Standing Counsel appearing for the Income Tax Department, in one voice, would agree that the following orders that have been passed in each writ petition would be taken to be consent orders. They request that the Court fix timelines afresh in all matters and undertake that the timelines so set out, will be adhered to scrupulously. W.P.No.12572 of 2021 : 4.The impugned order of assessment dated 31.03.2021 makes reference to a show cause notice issued to the assessee on 24.03.2021 calling for response on two issues. It is the case of the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which have been challenged in W.P.No.3380 of 2022. 12.Since the orders of penalty are liable to be set aside in view of the main order of assessment having itself been set aside, Registry has been directed to list W.P.No.3380 of 2022 under a Special List and it is so listed. This writ petition is also allowed. The impugned orders levying penalties are set aside. Liberty is always available to the respondent to revive the penalty subject to the assessments, and in accordance with law. W.P.No.13580 of 2021 : 13.In this writ petition, the petitioner has assailed order of assessment dated 25.05.2021 on the ground of gross violation of principles of natural justice. The impugned assessment has been preceded by not one, but two show cause notices. 14. The first show cause notice is dated 23.04.2021, calling for a response on 26.04.2021 by 23:59 hours. Admittedly, there was no response to the show cause notice from the petitioner within the time granted. The petitioner, according to the counter filed by the respondent, has written to the respondent on 30.04.2021, beyond the time granted, stating that some more time is needed to reply to the show cause notice in view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in terms of the Faceless Assessment Scheme. The petitioner, though it has not responded to a few notices issued as well as the draft assessment order, has vide communication dated 05.04.2021 furnished some particulars. It is the specific case of the learned counsel for the petitioner that the materials that have been supplied have not been taken into account while framing assessment.' 22.Pleadings are now complete. It is an admitted position that there has been no notice sent physically to the petitioner. That apart, notice is stated to be sent by email to the ID [email protected] . The petitioner denies knowledge of such an email-ID and draws attention to its communication filed before the Revenue pointing out that its email-id is [email protected] . 23. That apart, upon logging into the website, the petitioner states that it has noticed two notices that have been uploaded without any notification being sent to the petitioner either through SMS or email calling for certain particulars in regard to the assessment for Assessment Year 2020-21. The petitioner has uploaded the required information being the following : '1.The Balance Sheet part of ITR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unity of personal hearing has been granted. Other grounds are also raised that will be considered after completion of pleadings.' 29.Pleadings are now complete. The issues that arises for resolution are, (i) whether there has been compliance with the principles of natural justice in framing the assessment dated 21.06.2021 and (ii) whether the rejection of claim under Section 80IA of the Act is in order ? 30.As regards the first issue, there is no dispute in the position that the petitioner has indeed filed his reply dated 24.04.2021 to the show cause notice. In fact, the time granted for filing of such reply appears to be rather short, despite which, there has been compliance. Inter alia , the petitioner has sought an opportunity of personal hearing, which has been denied. 31.The reason set out for such denial is that there was no enabling feature on the website to afford such opportunity. This submission is rejected since it is incumbent upon the respondent to afford opportunity of personal hearing and that apart, it is for the Department to ensure that the website is endowed with all features necessary to make it viable and workable for the purpose of fra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not relate to this petitioner at all. The petitioner alleges that the contents of draft orders/transfer pricing reports filed by other assessees have been cut and pasted in its order, thus vitiating the order in full. 39.Though a counter has not been filed by the respondent in this matter, the learned Senior Standing counsel appearing for the Income Tax Department would fairly accede to the position that the impugned order contains several errors, according to her, inadvertant. The admitted position is that the assessments have been framed in a hurry based upon materials relating to other assessees. 40.That having been said, draft order dated 08.05.2021 is set aside. Though the petitioner has filed a letter dated 29.05.2021 informing the respondent that it intends to file a statutory appeal against the aforesaid order, no such appeal appears to have been filed. 41.The impugned order of assessment has come to be passed thereafter on 07.06.2021. The main ground on which the impugned order has been assailed is that there were additional issues therein, over and beyond what had been raised in the show cause notice dated 26.04.2021 to which the petitioner has sent a response. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the website by which he could have sought personal hearing. In all fairness, the respondent, at Para No.4 of the counter, has made it clear that the assessment has been completed without hearing the petitioner for the reason that it was time barring. 49.Bearing in mind the above factors, the following order is passed. Since there is some ambiguity as to whether at all there existed a provision in the website for activation of request for personal hearing, it would be in the fitness of things that the petitioner be heard prior to framing of the assessment in light of the admitted position that the petitioner has not been heard. The impugned order of assessment is set aside. 50.Let a link be sent to the petitioner listing the matter for personal hearing. In addition, though the petitioner states that it has uploaded replies dated 24.04.2021, 27.04.2021 and 06.05.2021, there is no reference to the same in the impugned order of assessment, leaving one in doubt as to whether such replies were even received by the Assessing Officer. 51.Thus, by way of abundant caution, the petitioner is granted liberty to upload the documents once again in the portal. The Assessing Officer s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortunities, there has been no response by the petitioner and hence, he was of the categoric view that the petitioner would not have anything further to establish in the course of personal hearing. 57.He would state that the question of personal hearing through video conferencing should be allowed only at the discretion of the Assessing Officer and considering the facts and circumstances of the case. However, this runs counter to the specific offer made in the show cause notice as extracted above where the petitioner has been asked to opt for personal hearing, which in this case has been so opted. 58.In the light of the above discussion, passing of the assessment order without a personal hearing, moreover attempting to justify the same, is not proper and in my view, vitiates the assessment order, which is set aside. 59. A link for personal hearing shall be sent to the petitioner and the petitioner shall be heard within a period four weeks. An order of assessment shall be passed within a period of eight weeks from the date of conclusion of personal hearing. Since the petitioner states that the time granted for filing reply at the first instance was inadequate, the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nicated to the petitioner. Admittedly, there is no record maintained in this regard. When a specific query was put to the learned Standing Counsel in this regard, she confirms that the extension of time was communicated to the petitioner. 67. In any event, the reply of the petitioner dated 20.09.2021 should have been taken into account since it has been filed prior to passing of the order of assessment. 68.The petitioner has also sought an opportunity of hearing as offered by the respondent in the show cause notice dated 25.08.2021 and admittedly, this request of the petitioner has been ignored. Therefore, and for the above reasons the impugned order of assessment is set aside. 69.Let a link be set listing the matter for personal hearing within a period of four weeks from the date of issue of a certified copy of this order. The petitioner is also permitted to make a written explanation upon conclusion of the personal hearing. An order of assessment shall be passed de novo within a period of eight weeks from the date of conclusion of personal hearing. The entirety of the exercise as aforesaid shall be completed within a period of 90 days from the date of issue of certifie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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