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TMI Blog2024 (3) TMI 784X X X X Extracts X X X X X X X X Extracts X X X X ..... r is passed under Section 74 of the Act, it is mandatory that opportunity of hearing be granted under Section 75(4) of the Act. On this very basis, the impugned orders do not have any legs to stand and are liable to be quashed and set aside. Furthermore, the judgement relied upon by the learned counsel for the petitioner in M/S DAIMOND (DIAMOND) STEEL VERSUS STATE OF UP AND 3 OTHERS [ 2023 (4) TMI 497 - ALLAHABAD HIGH COURT] is also buttressing the arguments of the petitioner that the adjudication carried out by the authorities below was nothing but a best judgement assessment, and accordingly, is against the principles as established in law. The impugned orders dated February 22, 2023 and January 16, 2023 are quashed and set aside with a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has been held that a best judgement assessment cannot be resorted to by the authorities when adjudication is made under Section 74 of the Act. Relevant paragraphs are delineated below :- 14. Be that as it may, the fact remains that while passing the assessment order, the adjudicating authority assessed the demand of tax and levied penalty on the basis of some guidelines issued by the Income Tax Authorities and taking the mean average of 8%, which is wholly impermissible while adjudicating Section 74, the said manner of adjudication adopted by the respondents department can at best be termed as best judgment assessment which can be resorted to only under Section 62 and that too only in respect of the persons who have not filed the returns. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consonance with the mandate of Section 74 and thus on the ground alone, impugned appellate orders as well as the adjudicating authority's orders are liable to be quashed. 4. Per contra, learned counsel appearing on behalf of the revenue has placed reliance on the orders passed by the authorities below and submitted that the writ Court should not interfere at this stage. Counsel further prays for time to file counter affidavit in this matter. 5. Upon an examination of the material on record, I find that this will be an exercise in futility to grant time for filing the counter affidavit, as the point involved in this writ petition is only a point of law. Firstly, as held by this Court in M/s Shree Sai Palace v. State of U.P. and others (d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersonal hearing, accommodating both proactive requests from individuals seeking to defend their interests and reactive responses to adverse orders contemplated by tax authorities. In either scenario, the statutory mandate remains clear: the individual must be afforded an opportunity for personal hearing before any final determination is made regarding tax or penalty imposition. Moreover, the statutory mandate for personal hearing reflects an acknowledgement of the complex and multifaceted nature of tax and penalty determinations, which often involve intricate legal and factual considerations. Personal hearing provides a forum for nuanced discussion and exploration of these complexities, enabling decision-makers to make well-informed and equ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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