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TMI Blog2022 (12) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... er on 31.3.2021. The petitioner filed return of income in response to the notice under Section 148 of the Act on 28.4.2021. Another notice dated 30.6.2021 under Section 143(2) read with Section 147 of the Income Tax Act, 1961 was issued acknowledging the response of the petitioner to the notice under Section 148 of the Act and the statement of reasons recorded for the purpose of reopening assessment were enclosed therein. The detailed objections were filed by the petitioner on 22.10.2021 challenging the jurisdiction of the assessing officer, in response to the notice under Section 148 of the Income Tax Act. 3. By order dated 9.12.2021, the objections filed by the petitioner against reopening of the assessment order vide letter dated 22.10.2021 had been disposed of. The order dated 9.12.2021 is appended as Annexure '7' to the writ petition. 4. The show cause-cum-draft assessment order dated 27.3.2022 was then served upon the petitioner proposing to make certain additions in the return of total income of the petitioner. The petitioner filed response to the said notice on 28.3.2022 with the request for hearing in the matter through video conferencing as envisaged in the show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authorities. The amendment in the statute would encourage arbitrary exercise of power, which is clearly repressive and unconstitutional. The argument is that the Parliament being aware of the hardship caused to the taxpayer when due process of law is not followed, thought in its wisdom to incorporate sub-section (9) of Section 144B. The Law made to safeguard the interest and right of the public cannot be repealed citing the reasons for bringing amendments. 9. The contention is that the Finance Bill, 2022 proposes to omit the provisions of sub-section (9) of Section 144B with retrospective effect, i.e. from 1.4.2021, i.e. from the date of its inception. The omission of sub-section (9) of Section 144B will make the entire Section 144B unconstitutional, inasmuch as, the omission of the check/safeguard would result in arbitrary, whimsical, capricious decision making process. 10. With the above submissions, learned counsel for the petitioner sought to impress upon the Court that Section 42 of the Finance Act, 2022, omitting sub-section (9) of Section 144B of the Income Tax Act be held unconstitutional, being ultra-vires to the Constitution. 11. In support of his arguments, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er:- "Amendment in Faceless Assessment under section 144B of the Act The Central Government has undertaken a number of measures to make the processes under the Act electronic, by eliminating person to person interface between the taxpayer and the Department to the extent technologically feasible, and provide for optimal utilisation of resources and a team-based assessment with dynamic jurisdiction. As part of this policy, vide Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020, Section 144B was inserted in the Act to provide the procedure for faceless assessment with effect from 01.04.2021 and the Faceless Assessment Scheme, 2019 ceased to operate that date. However, various difficulties are being faced by the administration and the taxpayers in the operation of the faceless assessment procedure. In view of the above, it is proposed that the existing provisions of the section 144B of the Act may be amended to streamline the process of faceless assessment in order to address the various legal and procedural problems being faced in the implementation of the said section." Sub-section (9) of Section 144B, which provided that the assessment procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd scope of an Amending Act and its retrospective operation may be culled out as follows: (i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits. (ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature. (iii) Every litigant has a vested right in substantive law but no such right exists in procedural law. (iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. (v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss Assessment Centre through video conferencing or video telephone and any other method of communication of telecommunication application. The personal hearing has, thus, been provided to the assessee in faceless assessment proceeding, without any approval of the Chief Commissioner or the Director General or the opinion formed by the incharge of the Regional Faceless Assessment Centre as provided in the pre-amendment sub-section (7)(viii) of Section 144B. Various other measures have been introduced in the amendments brought by the Finance Act, 2022 in the procedure for completion of faceless assessment under Section 144B to ease the process and avoid all technical objections. The omission of sub-section (9) of Section 144B was with various new measures for checks and balances having been provided in the procedure prescribed under Section 144B. Even otherwise, Section 144B being a procedural statute, no right much less substantive right can be said to have been conferred by sub-section (9) of Section 144B upon the taxpayer which provided for the proceeding of the assessment being non-est if not made in accordance with the procedure laid down under Section 144B. The said sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced on the decision of the Division Bench decisions of this Court in U.P. State Industrial Development Corporation Ltd. vs. Commissioner of Income Tax-II, Kanpur Income Tax Appeal No. 11 of 2015. 25. Learned counsel for the respondent-department, however, relied upon the decision of the Apex Court in The State of Maharashtra and others vs. Greatship (India) Limited Civil Appeal No. 4956 of 2022 dated 20th September, 2022 to challenge the entertainability of the writ petition against the order of assessment by-passing the statutory remedy of appeal. The contention is that the Apex Court has highlighted therein that self restraint has to be exercised by the High Courts as judicial prudence not to entertain the writ petitions without any valid reason shown by the assessee to by-pass the statutory remedy of appeal. 26. Considering the above submissions of the learned counsels for the parties and perused the record, we may note that it is brought before us that in the instant case, the proceedings for assessment were apparently conducted under the Faceless Assessment Scheme-2019. With the insertion of Section 143(3D) read with Section 144B w.e.f. 1.4.2021 by the Finance Act, 2021, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to decide the objection raised by the assessee/petitioner against reopening of the assessment for the assessment year 2013-14. The order of rejection of the objection filed by the petitioner was then passed on 9.12.2021 and was communicated through the National Faceless Centre. 33. The notice under Section 142(1) was then issued to the petitioner on 26.1.2022 through the National Faceless Assessment Centre, Delhi asking him to furnish the details on or before 3.2.2022. The reply was filed by the petitioner on 1.2.2022. The show cause notice-cum-draft assessment order dated 27.3.2022 was then served upon the petitioner through the National Faceless Assessment Centre, Delhi. The response to the same was filed by the petitioner on 28.3.2022 and a request for providing personal hearing through video conferencing was uploaded on 29.3.2022. The copy of the response dated 29.3.2022 to the show cause notice-cum-draft assessment order with the request for hearing through video conferencing is appended as Annexure '11' to the writ petition and the copy of the E-filing page of the Income Tax Department, is appended at page '101' of the paper book, wherein the date of assessee's request for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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