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TMI Blog2022 (10) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... 144 to be carried out as per the procedure contained therein and Sub-section (9) of Section 144B provides that notwithstanding anything contained in any other provision of the Act, the assessment made under Section 143(3) or Section 144 of the Act, shall be non-est if such assessment is not made in accordance with the procedure laid down u/s 144B of the Act. The opportunity of hearing as envisaged under Section 144B of the Act is also therefore, required to be scrupulously adhered to as the principles of natural justice are unfailingly ingrained in the procedure prescribed for Faceless Assessment. As in the facts of the case, it is not in dispute that the draft assessment order is not forwarded to the petitioner, which is required to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment order by granting an opportunity of personal hearing to the petitioner as per the procedure prescribed under Section 144B of the Act. - R/SPECIAL CIVIL APPLICATION NO. 16415 OF 2021 - - - Dated:- 2-8-2022 - HONOURABLE MR. JUSTICE N.V.ANJARIA AND HONOURABLE MR. JUSTICE BHARGAV D. KARIA MR TUSHAR HEMANI, SENIOR ADVOCATE WITH MS VAIBHAVI K PARIKH FOR THE PETITIONER MR NIKUNT RAVAL FOR MRS KALPANAK RAVAL FOR THE RESPONDENT JUDGMENT PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA Heard learned Senior Advocate Mr.Tushar Hemani assisted by learned advocate Ms.Vaibhavi K. Parikh for the petitioner and learned advocate Mr.Nikunt Raval appearing for learned advocate Ms.Kalpana K. Raval for the respondent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2654 of 2019 before this Court which came to be disposed of by order dated 6th August, 2021. 3.2 Notice dated 17th August, 2021 under Section 142(1) of the Act was issued by the respondent calling upon the petitioner to furnish various details and information. Thereafter, another notice dated 6th September, 2021 was issued under Section 142(1) of the Act, and finally, notice dated 18th September, 2021 under Section 142(1) of the Act was issued, with which the show-cause notice dated 5th November, 2019 was also attached calling upon the petitioner to furnish reply to the said show-cause notice dated 5th November, 2019. 3.3 The petitioner vide letter dated 21st September, 2021 prayed for adjournment for a week. Thereafter, the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... September, 2021 and 24th September, 2021, passed the impugned order. It was submitted that the respondent ought to have considered the request for adjournment for one week and considered the reply dated 24th September, 2021 filed by the petitioner and personal hearing. It was submitted that the respondent Assessing Officer, without issuing draft assessment order, has passed the impugned assessment order in violation of principles of natural justice. It was submitted that personal hearing is necessary before passing any adverse order against a person. 4.2 In support of his submissions, learned Senior Advocate Mr.Hemani relied upon the decision of this Court in case of Atulbhai Kantilal Mehta Vs. The Additional/Joint/Deputy/Assistant Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d mind but the petitioner has not availed the opportunity to file the reply within the time provided by the Assessing Officer. It was submitted that proper procedure has been followed as laid down in the Act before passing the impugned order based upon the facts available on record in accordance with the applicable law in Faceless Assessment Scheme. 6. Considering the rival submissions made by both the sides the only question which is required to be considered is that, whether the respondent authorities have followed the due procedure of law as envisaged under Section 144B(1)(xvi) read with Section 144B(7)(vii) and (xii) of the Act or not, while passing the impugned assessment order dated 26th September, 2021. 7. The answer to the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Income Tax, reported in (2021) 129 taxmann.com 18(Bombay) and the Delhi High Court in case of Sanjay Agrawal Vs. National Faceless Assessment Centre, Delhi, reported in (2021) 127 taxmann.com 637 (Delhi) have also taken the same view. 9. The contention raised on behalf of the Revenue with regard to alternative and efficacious remedy available to the petitioner and preferring an appeal before the Commissioner of Income Tax is concerned, as the impugned order is passed in violation of principles of natural justice and is contrary to the procedure prescribed for Faceless Assessment as per Section 144B of the Act, we are of the opinion that the same can be challenged by invoking the extraordinary jurisdiction under Article 226 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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