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TMI Blog2023 (11) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... Appearance: For The Petitioner(S) No. 1 : Mr. Tushar Hemani, Ld. Senior Advocate With Ms Vaibhavi K Parikh(3238) For The Respondent(S) No. 1 : Mr. Nikunt Raval, Ld. Senior Standing Counsel For Mrs Kalpana K Raval(1046) X ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV) 1. RULE returnable forthwith. Mr. Nikunt Raval learned Senior Standing Counsel appearing for Mrs. Kalpana Raval learned advocate for the Revenue waives service of notice of Rule. 2. With the consent of learned advocates for the respective parties, the petition is taken up for final hearing. 3. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed to quash and set aside the impugned assessment order dated 28.09.2021 as well as the demand notice dated 28.09.2021 for the assessment year 2018-19. 4. Facts of the present case are as under: 4.1 The petitioner is a company and majority of its shareholders are citizens of India. 4.2 The petitioner filed return of income for the Assessment Year 2018-19 (ie. year under consideration) on 26.09.18. Later, revised return of income was filed by the petitioner declaring total lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Hemani would like to invite attention of this Hon'ble Court to the following vital dates: 25.03.21-Show cause notice was issued proposing addition in respect of increase in investments under section 69 of the Act: 30.03.21-Detailed reply was furnished by the petitioner along with evidences so as to demonstrate as to why addition under section 69 of the Act is not justified; 16.09.21-Reply reiterating contentions raised in earlier letter was furnished; 28.09.21-Impugned Assessment Order was passed whereby addition was made under section 68 of the Act for which no show cause notice was issued at all; 30.09.21-Last date for framing the assessment under section 143(3) r.w.s. 144B. 5.3 Mr. Hemani would further submit that issuing of a show cause notice and personal hearing is necessary before passing any adverse order against a person. It is a trite law that when the statute is silent, with no positive words in the Act or the Rules spelling out the need to hear the party whose rights or interests are likely to be affected, requirement to follow fair procedure before taking a decision must be read into the statute, unless the statute provides otherwise. The principles of natural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e parties, what needs to be considered in fact is whether by not issuing show cause notice while framing the assessment, principles of natural justice have at all been violated. 8. As submitted by Mr. Tushar Hemani, learned Senior Counsel, a Division Bench of this court, albeit in somewhat different facts in Special Civil Application No. 4806 of 2022 in an oral judgement dated 29.08.2022 considering the provisions of Section 144B of the Act held as under: 8. We have heard learned advocates appearing for the respective parties and perused the impugned order as well as gone through relevant provisions of law. In order to adjudicate the issue involved with regard to providing opportunity of hearing, it would be germane to refer to the relevant provisions of section 144B of the Act, 1961 which reads as under : 144B. (1) Notwithstanding anything to the contrary contained in any other provisions of this Act, the assessment under sub-section (3) of section 143 or under section 144, in the cases referred to in sub-section (2), shall be made in a faceless manner as per the following procedure, namely: xxx (xiv) the assessment unit shall, after taking into acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpleted as per the such draft or final draft or revised draft assessment order, the assessee or his authorised representative, as the case may be, may request for personal hearing so as to make his oral submissions or present his case before the income-tax authority in any unit; (viii) the Chief Commissioner or the Director General, in charge of the Regional Faceless Assessment Centre, under which the concerned unit is set up, may approve the request for personal hearing referred to in clause (vii) if he is of the opinion that the request is covered by the circumstances referred to in subclause (h) of clause (xii); (ix) where the request for personal hearing has been approved by the Chief Commissioner or the Director General, in charge of the Regional Faceless Assessment Centre, such hearing shall be conducted exclusively through video conferencing or video telephony, including use of any telecommunication application software which supports video conferencing or video telephony, in accordance with the procedure laid down by the Board; 9. Section 144B of the Act, 1961 provides detailed procedure for Faceless Assessment introduced by the Taxation and Other Laws (R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment. 13. In the result, this petition succeeds and is accordingly allowed. The impugned order of assessment passed by the respondent under Section 147 read with Section 144B of the Income Tax Act, 1961 dated 22.02.2022 and demand notice under section 156 of the Act of even date are quashed and set aside. The respondent/Revenue will be at liberty to proceed with assessment under the provisions of section 144B of the Act, 1961 as permissible under the law after issuance of show cause notice-cum-draft assessment order so as to provide an opportunity of hearing to the petitioner. The petitioner shall be given an opportunity of hearing as per the provisions of section 144B of the Act, 1961. Such exercise shall be completed within 12 weeks from the date of receipt of copy of this order. 9. In view of above, it can be safely said that the impugned order was passed by the respondent in violation of principles of natural justice without issuing show cause notice while framing assessment and affording an opportunity of personal hearing by not following the prescribed procedure laid down as per the provisions of section 144B of the Act, 1961 for Faceless assessment. 10. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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