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TMI Blog2022 (11) TMI 1214X X X X Extracts X X X X X X X X Extracts X X X X ..... justice. See Radha Krishan Industries Vs. State of Himachal Pradesh Ors. [ 2021 (4) TMI 837 - SUPREME COURT] What are the statutory requirements? - The assessment unit shall, after taking into account all the relevant material available on record, has two options, namely, (a) to prepare in writing an income or loss determination proposal, where no variation prejudicial to the assessee is proposed and send a copy of such income or loss determination proposal to the National Faceless Assessment Centre (for short, NFAC ). The second alternative is as mentioned in clause (b) is to issue a show cause notice stating variations prejudicial to the interest of the assessee proposed to be made to the income of the assessee and calling upon h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng an assessment order passed under Section 143(3) read with Section 144B of the Income Tax Act, 1961 (for short, the Act ) dated 8th September, 2022. The challenge to the assessment order was primarily on the ground of violation principles of natural justice inasmuch as the assessing officer has failed to issue notice as required to be issued under Section 144B (1)(xii) (b) of the Act. The learned Single Bench was of the view that as against the assessment order, an effective alternate remedy by way of an appeal is provided for and therefore, was not inclined to interfere with the assessment order. 2. The moot question would be as to whether existence of an alternate remedy under the relevant statute will be a total bar for the exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged; (iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law; (v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forded an opportunity of personal hearing, nor any further information was called for from the assessee but the assessing officer straightway proceeded to complete the assessment and passed the assessment order dated 8th September, 2022. 6. Curiously enough, in the assessment order in paragraph 3, the assessing officer stated that in response to the statutory notices issued under Section 143(2) and 143(1), the assessee has furnished the requisite details along with supporting documentary evidences regarding the issue of selection, which have been duly verified. However, in paragraph 5, the assessing officer states that the assessee did not furnish any evidence as to when the land was tilted, when the crop was sown, when the crop was read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repare in writing an income or loss determination proposal, where no variation prejudicial to the assessee is proposed and send a copy of such income or loss determination proposal to the National Faceless Assessment Centre (for short, NFAC ). The second alternative is as mentioned in clause (b) is to issue a show cause notice stating variations prejudicial to the interest of the assessee proposed to be made to the income of the assessee and calling upon him to submit as to why the proposed variation should not be made and serve such show cause notice on the assessee through NFAC. Admittedly, clause (b) of Section 144B (1)(xii) has not been followed in the case on hand. 9. In Sardar Co-op. Credit Society Ltd. Vs. Additional/Joint/Depu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der passed in the writ petition is set aside. Consequently, the writ petition is allowed and the assessment order dated 8th September, 2022 is set aside and the matter is remanded to the assessing officer for a fresh decision. The assessing officer is directed to issue a show cause notice under Section 144B(1)(xii)(b) clearly setting out the proposed variations and the assessee should be granted reasonable time to file objections along with the documents and after receipt of the same, fresh proceedings be initiated in accordance with law. 12. In the light of the above, the penalty proceedings, which have been initiated as a consequence of the assessment order also stands set aside with liberty to proceed in accordance with law after the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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