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TMI Blog2024 (2) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... violation of principles of natural justice or lack of jurisdiction or error apparent on the face of the record are some of the exceptions carved out to the rule of alternate remedy for exercise of discretion under Article 226 of the Constitution of India. Notice under section 144B (1)(iii) of the Act was not furnished - The petitioner had filed its return of income under section 139 of the Act and the 2nd Respondent had issued notice under section 143 (2) of the Act on 22.09.2019, thus the petitioner case falls under clause (iii)(a) of Section 144B(1). As the expression employed in Section 144B (1) (iii) of the Act viz., shall , is prima-facie indicative of being mandatory, though the same may be rebutted by other considerations such as the object and scope of the enactments and the consequences flowing from such construction. We do not propose to get into the above question for the present. The intimation u/s 144B(1)(iii) of the Act, informs an assessee of the fact that the assessment would be made in terms of Section 144B of the Act, which is important if one bears in mind that Faceless Assessments u/s144B of the Act comes with its own set of obligations and rights in m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions / response of the petitioner made vide letter dated 22.09.2021. Thus the draft assessment order suffers from non-application of mind to matters that are relevant and on record, thus stands vitiated. We are inclined to set aside the impugned proceedings while leaving it open to the respondent authority to proceed, to frame the assessment in accordance with law, after following the procedure contemplated u/s 144B. Decided in favour of assessee. - Honourable Mr. Justice Mohammed Shaffiq For the Petitioner : Mr.Chythanya KK Senior Advocate For the Respondents : Mr.B.Ramanakumar Standing Counsel ORDER The writ petition is filed challenging the impugned order of assessment passed under Section 143(3) read with Section 144B of the Income Tax Act, 1961(hereinafter referred to as the Act ) passed by the 1st Respondent for the assessment year 2018-19. 2. Brief facts of the case: 2.1. The petitioner is engaged in the business of manufacture/production and sale of animal feed, aquatic feed, aquatic health care products, broiler birds, shrimp seeds, processed food and ready to eat chicken products. It filed its return of income for Assessment Year 2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following infirmities, each one of which by itself would prove fatal to the validity of the impugned proceedings. a) Intimation under Section 144 B(1)(iii) of the Act was not furnished which is mandatory and thus fatal to the validity of the impugned order. b) The petitioner had filed its objections / reply on 22.09.2021 which was not considered while passing impugned order on 27.09.2021. Non consideration of reply is contrary to the mandate contained in Section 144B(1)(vii) read with (xiv) and (xvi)(b) of the Act, thereby vitiating the impugned order. c) The impugned order of assessment traverse beyond the Draft Assessment Order, thereby causing serious and grave prejudice to the petitioner. However, no opportunity was provided to the petitioner to deal with the same thereby violating the mandate contained in Section 144 B (7)(vii) of the Act. It was thus submitted that the impugned order is illegal and bad for the above reasons. 4. To the contrary, the learned Standing Counsel for the Respondent submitted as under: a) The Writ Petition is not maintainable in view of the availability of alternate remedy. b) That there is no violation of principles of natural just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there has been paradigm shift as to the method and manner/ procedure adopted in making the assessment. The government transitioned the tax assessment process from face-to-face assessment to electronic assessment and now to a complete faceless assessment. The faceless assessment scheme was launched in 2020 with the objective of promoting an efficient and effective tax administration, minimizing physical interface, increasing accountability. Faceless assessment is, no doubt, a major tax reform initiative and India is one of the few countries to adopt such a system. The intimation by the National Faceless Assessment Center contemplated under Section 144B(1)(iii) of the Act has not been furnished. The relevant provision reads as under: (iii) where the assessee- (a) has furnished his return of income under section 139 or in response to a notice issued under sub-section (1) of section 142 or under subsection (1) of section 148, and a notice under sub-section (2) of section 143 has been issued by the Assessing Officer or the prescribed income-tax authority, as the case may be; or (b) has not furnished his return of income in response to a notice issued under sub-section (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... / Non-consideration of Petitioner's Reply dated 22.09.2021: I also find that the impugned order is made in disregard to the procedure laid down in Section 144 B(1) (xi) to (xiv) of the Act. It may be relevant to refer to the above provisions : Section 114B(1)(xi) to (xiv) of the Act : (xi) where the assessee fails to comply with the notice referred to in clause (vi) or notice issued under sub-section (1) of section 142 or with a direction issued under sub-section (2A) of section 142, the National Faceless Assessment Centre shall serve upon such assessee a notice under section 144 giving him an opportunity to show-cause, on a date and time to be specified in the notice, why the assessment in his case should not be completed to the best of its judgment; (xii) the assessee shall, within the time specified in the notice referred to in clause (xi) or such time as may be extended on the basis of an application in this regard, file his response to the National Faceless Assessment Centre; (xiii) where the assessee fails to file response to the notice referred to in clause (xi) within the time specified therein or within the extended time, if any, the National Face ..... 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