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TMI Blog2023 (6) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner, reasonable/adequate opportunity was required to be given to him. In the present case, adequate opportunity was not given to the petitioner and therefore only on this ground the petition deserves to be allowed. WP allowed. Decided in favour of assessee. - R/SPECIAL CIVIL APPLICATION NO. 7864 of 2022 - - - Dated:- 19-6-2023 - HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI And HONOURABLE MR. JUSTICE DEVAN M. DESAI MR B S SOPARKAR(6851) FOR THE PETITIONER(S) NO. 1 MR KARAN SANGHANI FOR MRS KALPANAK RAVAL(1046) FOR THE RESPONDENT(S) NO. 1 SERVED BY RPAD (N) FOR THE RESPONDENT(S) NO. 2 JUDGMENT ( PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI ) 1. This petition is filed under Article 226 of the Constitution of India in which the petitioner has prayed for the following relief/s: (a) quash and set aside the impugned assessment order dated 31.03.2022 at Annexure- A to this petition; (b) allow the Petitioner to file his reply to show cause notice dated 29.03.2022 and direct the Respondents to pass the fresh assessment order after considering the reply of the Petitioner. (c) pending the admission, hearing and final disposal of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed part submissions/reply on 29.03.2022 and requested to grant an opportunity of hearing through video conference. It is stated that the said opportunity was provided on 30.03.2022 and thereafter the impugned assessment order dated 31.03.2022 came to be passed under Section 147 read with Section 144B of the Act. The petitioner has, therefore, challenged the same by preferring the present petition. 4. Learned advocate Mr. Soparkar appearing for the petitioner mainly submitted that the act of giving only 12 hours to file reply to the show cause notice by the respondents is in clear violation of the principles of natural justice. It is submitted that though the petitioner hurriedly filed a reply to the said show cause notice, the respondents have failed to grant adequate opportunity of hearing to the petitioner. It is further submitted that in the reply dated 29.03.2022 submitted by the petitioner, copy of which is placed on record at page 82 of the compilation, the petitioner has specifically asked for certain documents for cross-verification and also requested that petitioner be permitted to crossexamine one Mr. Saurabh Kathwadia based on whose statement the petitioner was ask ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he record that the petitioner submitted his reply. In the said reply, the petitioner also requested to grant opportunity of hearing through video conference. The said request was also acceded to by the respondent authority and opportunity of hearing through video conference was also provided to the petitioner and therefore, now, it is not open for the petitioner to contend that only 12 hours time was given to the petitioner to submit his reply. It is also submitted that no prejudice is caused to the petitioner by not providing adequate opportunity of hearing as contended by learned counsel for the petitioner in the facts of the present case. 7. Learned Standing Counsel further submitted that the petitioner is having alternative efficacious remedy to file appeal before the Appellate Authority against the impugned order passed by the concerned respondent and it is always open for the petitioner to raise all available contentions before the said Appellate Authority and therefore this Court may not entertain the present petition. 8. Learned Standing Counsel appearing for the Revenue has placed reliance upon the decision rendered by this Court in the case of Nileshkumar Bhupendrab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he concerned assessee, and therefore, in the facts of the said case, this Court held that though earlier various notices were issued to the concerned assessee, the respondent was required to issue show cause notice-cum-draft assessment order, which is mandatory requirement for faceless assessment. However, we are of the view that the aforesaid decision would not be applicable to the facts of the present case because in the present case, show cause notice-cum-draft assessment order was issued to the petitioner. 13. In the case of Agrawal JMC Joint Venture (supra), similar type of objection was raised by the respondents in the affidavit-in-reply. The contention was raised in the said case that petitioner is having alternative efficacious remedy of filing an appeal before the Appellate Authority and therefore petition may not be entertained. However, the Division Bench of this Court, after considering various aspects and after considering the submissions canvassed by learned advocates appearing for the parties, observed in para 18 and 19 as under: 18. In summation, it can be deduced from the provisions, as also the decisions discussed that Section 144B of the IT Act under head ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turned income as provided under Section 144B(1)(xiv) of the Act. Therefore, he has urged that notice was uploaded on 17.03.2022 at 12:41 IST and asked the petitioner to comply before 6:00 p.m. on 18.03.2022. Thereby, the petitioner was allowed hardly a time of 12 hours to comply to the aforesaid notice. Further, 18.03.2022 was a holiday on account of Dhuleti and yet the petitioner uploaded all the possible and available details with him. There was gross violation of the principles of natural justice and the entire action of the respondent of completing the assessment was not in consonance with the legislative intent. Heavy reliance was placed on the decisions in Calcutta Discount Co. Ltd. v. ITO, 41 ITR 191 (SC) and in Radhakishan Industries v. State of Himachal Pradesh and Others, (2021) 6 SCC 771. The addition made herein of Rs.39,87,750/- allowing less than four hours to make necessary calculations and collect the details is next to impossible task and hence, the order is sought to be interfered with. 6. Having thus heard both the sides, on the ground of non-compliance of mandatory statutory provisions and for grant of less than four hours to respond to the notice on 29.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven to the petitioner assessee. We have gone through the reply dated 29.03.2022 submitted by the petitioner, copy of which is placed on record at page 82 of the compilation. A specific request was made by the petitioner to the respondent that particular documents/details be supplied for cross verification and an opportunity to crossexamine one Mr. Saurabh Kathwadia be given to the petitioner. However, it is not in dispute that the said documents as asked for by the petitioner were not supplied to him nor any opportunity of crossexamination of the aforesaid person was granted to the petitioner. Even otherwise, within less than 12 hours, it is difficult for the petitioner to submit complete reply to the respondents. 15. It is contended by learned Standing Counsel for the Revenue that by not granting such adequate opportunity to the petitioner, no prejudice is caused to the petitioner as the respondents issued various notices to the petitioner to which the petitioner did not reply. However, we are of the view that when the show cause notice-cum-draft assessment order is issued to the petitioner, reasonable/adequate opportunity was required to be given to him. In the present case, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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