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TMI Blog2023 (9) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... terials. The petitioner had filed return of income declaring total loss of Rs. 33,78,626/-. 2.1 The case of the petitioner was selected for limited scrutiny for issue regarding large increase in unsecured loans in comparison to high loans/advances/investment in shares. The Assessing Officer made a disallowance of Rs. 41,044/- under Section 14A read with Rule 8D of the Income Tax Act, 1961 and Income Tax Rules in the assessment order dated 08.02.2017. 2.2 Subsequently, notice under section 263 of the Act came to be issued invoking the provisions of Section 2(22) (e) of the Act on the ground that the assessment order dated 08.12.2017 was passed which was erroneous and prejudicial to the interest of revenue. The order was passed on 16.03.2020. Being aggrieved by the order passed by the revisionary authority, the petitioner filed an appeal on 31.03.2021 before the ITAT. 2.3 It is the case of the petitioner that in pursuance of the order dated 16.03.2020, notices were issued on 08.09.2021 and 21.09.2021 asking for various details. Since the notices went to an old authorized representative on his email address, it is the case of the petitioner that he could not represent on 28.09.2021 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9/2001] (b) Dineshkumar Chhaganbhai Nandani vs ITO 2023:GUJHC:2993-DB (c) Sharmila Vikram Mahurkar vs ACIT [[2023] 149 taxmann.com 375 (Gujarat)] (d) Dipak Natwarlal Dholakiya vs ACIT [[2023] 149 taxmann.com 151 (Gujarat)] (e) M/s. Advance Realty Developers vs NeAC [2021 : GUJHC:53030-DB] (f) Dharamshil Agencies vs. Union of India [2021 : GUJHC: 26807-DB (g) MMG Constructions LLP vs. Union Of India & Ors. Writ Petition No. 21638 of 2021 (T-IT) at High Court of Karnataka (h) Dipesh Lalchand Shah vs. NFAC [[2023] 146 taxmann.com 517 (Gujarat)] (i) Darshan Enterprise vs. ACIT [[2022] 134 taxmann.com 411 (Delhi)] (j) K.K. Wine vs. NeAC [[2022] 143 taxmann.com 411 (Delhi) (k) Lamba Techno Flooring Solutions (P.) Ltd. vs. NFAC, Delhi [[2021] 127 taxmann.com 194 (Delhi)] (l) Pankaj vs. NeAC [[2022] 135 taxmann.com 361 (Bombay) (m) Swastik Wire Products vs. PCIT [[2023] 149 taxmann.com 47 (Himachal Pradesh) (n) Divya Capital One (P) Ltd. vs. ACIT [[2022] 139 taxmann.com 461 (Delhi) (o) Tata Capital Financial Services Ltd. vs. ACIT [[2022] 137 taxmann.com 315 (Bombay)] 4. Mr. Karan Sanghani, learned advocate appearing for the respondent submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the petitioner to respond so as to save the limitation period, obviously created a situation where the petitioner lost an adequate opportunity to submit a response. 6. Mr. Hardik Vora, learned counsel for the petitioner has cited several decisions on the issue of inadequate opportunity as a result of such an exercise at the hands of the authorities. In the case of Dineshkumar Chhaganbhai Nandani (supra), the co-ordinate bench of this court was faced with a case where a show-cause notice was issued on 29.03.2022 to show cause as to why the proposed variation should not be made. The show cause notice was sent at 11.41 am on 29.03.2022 and it was stated in the said notice that the petitioner shall submit reply by 23.59 pm on the very same day i.e. on 29.03.2022 and thereby time of 12 hours was given. 6.1 The facts of the case in the present are similar to the one in the case of Dineshkumar Chhaganbhai Nandani (supra) inasmuch as the notice of 28.09.2021 called upon the petitioner to file a response by 29.09.2021 at 11.59 pm. On the very next date, since the assessment was getting time-barred, an order of assessment was passed only for the compliance of the provisions and depriv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 144B of the IT Act also shall need to be scrupulously adhered to as the principles of natural justice are unfailingly ingrained in this provision. 19. Reverting to the facts on the matter on hands, it is quite clear that the notice along with the draft assessment order was given to the petitioner on 04.04.2021, the response to the same was given within two days by the petitioner in the mode as prescribed under the Law. It also filed further reply to the said notice on 08.04.2021 as well as on 15.04.2021 in continuation of the first reply of 06.04.2021. It is also a matter of record that there is no reference of the request made on 07.04.2021 in a subsequent reply made in continuity on the part of the petitioner of 08.04.2021 as well as 15.04.2021. However, that would not in any manner question his conduct of requesting for the personal hearing in as much as that aspect is neither disputed nor belied from the material which is available from the e-portal of the Income Tax Department. In fact in the affidavit-in-reply itself there is a reference of such a request made by the petitioner which according to the respondent-revenue is impermissible as he has not exercised the option ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the respondent. The least that could have been done was to regard the objective and very purport of introducing service of show-cause notice cum draft assessment order under Section 144B of the Act. Such Faceless Assessment Scheme 2019 has been incorporated under the Tax regime vide Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020, whereby, Section 144B was inserted from 1st April 2021. The circular of Central Board of Direct Taxes (CBDT) deals with the procedure of faceless assessment, scope of work to be done by different units such as assessment unit, verification unit, technical unit etc. Non-compliance of sub-section (9) of Section 144B of the Act would render the issue non est. Our attention is drawn that the provisions of sub-section (9) of Section 144B of the Act though have been omitted from the statute book, there is no running away from the fact that the time given is in no manner can be said to be in due compliance of the statutory provisions or in satisfaction of fulfilling the objectives of newly introduced provisions. 13.2. In the aforesaid case, less than five hours time was given to the concerned assessee for filing reply a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en when no time period is stipulated for seeking the response from the petitioner/assessee, the minimum reasonable time could be of 15 days where the parties can examine the details and can respond again during that period if there is a request that comes, the least that the authority can do is to respond to the same just because there is no human agency that would not mean that the National Faceless Centre would not respond to the request. 11.1 Once the statute provides that there is an opportunity to be availed to the assessee when there is a variation prejudicial to its interest is proposed, his request for adjournment as well as for the hearing also needs to be responded to. It is a completely unacceptable and unpalatable proposition that once a request come from the assessee, the respondent chooses not to respond to the same and go ahead with the framing of the assessment, that too when the time period was not expiring. Even if the time period expires, it is for the respondent to workout a schedule in the manner as expected particularly when there is no human agency and when the assessee also has no one to turn to but to send a request through the e-portal." 6.3 In the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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