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TMI Blog2023 (11) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... portunity of personal hearing, since, by means of show cause notice, the petitioner can only be expected to file reply or objections to the query or any other issues raised in the show cause notices, and though even by means of such show cause notice, petitioners have been called upon to appear in person along with reply, that would be only for the purpose of enabling the Officer to arrive at a preliminary conclusion and thereafter, AO has to ascertain the facts with regard to the genuineness of documents, if any, produced by the Assessee, for which purpose, the assessee has to be heard. However, I find that, in the instant case, the petitioners have not been heard before passing the impugned orders and this is sufficient to hold that the impugned orders are unsustainable in the eye of law. Writ Petitions are allowed, the impugned orders are set aside and the matters are remanded back to the respondent for re-consideration, in which case, the respondent shall provide an opportunity of personal hearing to the petitioners by fixing a specific date for hearing. - Honourable Mr.Justice Krishnan Ramasamy For the Petitioner in all W.Ps. : Mr.P.S.Raman, Senior Counsel for Mr.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer to proceed with the re-assessment proceedings, the Assessing Officer passed Draft Assessment Orders for Ays 2006-07 to 2015-16. Challenging the Draft Assessment Orders, WBC filed objections before the Hon'ble D ispute R esolution P anel ('DRP') and DRP upheld the Draft Assessment Orders, pursuant thereto, the Assessing Officer passed Final Assessment Orders. Aggrieved by the Final Assessment Orders, WBC filed Appeals before the Income Tax Appellate Tribunal. iv) The proceedings initiated against WBC in respect of AYs 2006- 07 to 2015-16 are pending by way of Appeals before Division Bench of this Court as well as Tribunal. At this juncture, the respondent-Department is seeking to recover the disputed demand by treating the petitioner as an Agent (representative Assessee) under Section 163 (1) I.T.Act and issued a show cause notice, to which, the petitioner submitted their reply and the respondent, without even providing an opportunity of personal hearing, passed the impugned order dated 26.09.2023. Aggrieved by the same, the present Writ Petitions are filed challenging the impugned orders on following grounds:- i) The impugned orders treating the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g either in person or through authorized representative on or before 13.09.2023 and on the said hearing date, i.e. 13.09.2023, the petitioners have failed to appear and filed their replies only on 18.09.2023, i.e. after the expiry of the date fixed for hearing and filing reply, and hence, the respondent, taking into consideration of the replies filed by the petitioners proceeded to pass the impugned orders. Therefore, the learned Senior Standing Counsel would submit that the petitioners having failed to utilize the opportunity given to them, cannot be make hue and cry stating that no opportunity of personal hearing was given. However, the learned Senior Standing Counsel fairly submitted that after the receipt of reply from the petitioners no opportunity of personal hearing was provided to them. 6. I have given due consideration to the submissions made by the learned Senior Counsel for the petitioners and learned Senior Standing Counsel for respondent and perused the materials available on record. 7. The case of the petitioners is that though they are the Directors of WBC, which is a Foreign Company, they are not Agents of the said Company. However, proceedings under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders. However, the respondent, without considering such request, straightaway passed the impugned orders on 26.09.2023, and in the said impugned orders, the replies filed by the petitioners were also considered and discussed. 11. When the respondent-Department had initiated proceedings under Section 163 (1) of I.T. Act, by treating the petitioners as Agents of WBC, they ought to have provided an opportunity of personal hearing to the petitioners, since, in terms of Section 163 (2), provision of personal hearing is mandatory. As rightly pointed out by the learned Senior Counsel for the petitioner, the show cause notices issued by the respondent-Department requiring the petitioners to appear in person and file their replies could be deemed to be a notice providing an opportunity of personal hearing, since, by means of show cause notice, the petitioner can only be expected to file reply or objections to the query or any other issues raised in the show cause notices, and though even by means of such show cause notice, petitioners have been called upon to appear in person along with reply, that would be only for the purpose of enabling the Officer to arrive at a preliminary conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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