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TMI Blog2024 (5) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... ential principles of natural justice has been committed by the assessing authority. No real opportunity of hearing was granted to the assessee for the date 22.03.2024. In any case, even if the assessee had failed to avail that opportunity and failed to apply for adjournment on that date, it never became to the assessing authority to then pass no order on the date 22.03.2024 and to proceed against the assessee wholly ex parte , thereafter. The assessment order dated 28.03.2024 has been passed five days after the last date fixed that too without conducting any proceeding involving the assessee. Neither on 22.03.2024 nor on subsequent dates there is record of any proceeding or any other date fixed. Accordingly, the order passed is set aside. The petitioner may treat that order as final show-cause notice and submit its reply thereto within a period of one week and not later. Thus, written reply, if any, may be filed by the petitioner by 20.05.2024. If the AO is inclined to accept the explanation furnished by the assessee, in entirety, he may pass the consequential order without fixing any further date for hearing as the petitioner has not requested for the same. - Hon'ble Saumitr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he has relied on screen shot of the official e-mail described to have been dispatched to the assessee on 19.03.2024, fixing the date for hearing in the above noted assessment case on 22.03.2024. 5. Upon hearing learned counsel for the parties, it falls in the realm of dispute if the above described e-mail was actually dispatched to the assessee and whether it was actually received by the assessee. That dispute may require affidavits to be invited before any firm conclusion may be drawn. However, we do not consider that issue to be necessary to be dealt with in view of what may be noted with respect to the other aspect of the case. 6. Thus, we find from the copy of the order sheet 'X' (noted above) that the case was assigned to the National Faceless Assessment Centre ('NFAC' in short) on 16.05.2023. On 02.06.2023 it issued intimation letter to the assessee. Also, on that date, NFAC generated notice under Section 143(2) of the Act. Then, on 24.08.2023 it prepared a proposal for generation of notice under Section 142(1) of the Act. Accordingly, a draft notice was prepared. It was followed by a proposal to generate notice under Section 142(1) of the Act. The same was ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment order came to be passed for no fault of the assessee. In the first place, wholly inadequate two day time was granted to the assessee to furnish reply to the notice dated 19.03.2024 and second without conducting any proceeding on the date fixed, ex parte assessment order has been passed. 10. Earlier, in Satish Kumar Bansal Huf Vs. National Faceless Assessment Centre Nafac And Another (Writ Tax No. 627 of 2024); Neutral Citation No. - 2024:AHC:73541-DB , we had the occasion to deal with issue of denial of adequate opportunity of hearing. Therein it has been observed as below : 5. Having heard learned counsel for the parties and having perused the record, Section 144B of the Act [by virtue of sub- Section 6(vii) and (viii)] mandates opportunity of hearing to be given to the petitioner upon show-cause notice issued to show-cause why assessment may not be completed as proposed. Further, if at the time of submission of his reply to the show-cause notice, the assessee requests for opportunity of personal hearing, the same is necessary to be provided in terms of Section 144B(6)(viii). Reading of the two provisions does not suggest that grant of opportunity of personal hearing is opt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same or similar thoughts are expressed differently by different persons depending upon their own skill and preferred use of expressions and method of writing. Therefore, what may be intended to be communicated by an assessee by submitting his written reply, may be received differently by the Assessing Officer on a simple ex parte reading of the same. 8. Therefore, for the purpose of an effective discussion to arise and a reasoned conclusion to be drawn thereafter by the Assessing Officer, oral hearing remains an important and near about mandatory requirement to be fulfilled to ensure both, the requirement to pass a just and proper judicial or quasi judicial order and also to preserve the faith in the adjudicatory authorities. 9. Seen from another perspective, if the assessee is to be taxed at a rate or at income higher than he has returned, he deserves to know the reasons for the same. The reasons may not be drawn ex parte i.e. on the strength of an ex parte opinion of the Assessing Officer. Rather, there must be recorded reasons to deal with the explanation that the assessee may have furnished to the tentative opinion of the Assessing Officer. Only after such reasons are drawn an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in accordance with law. 12. Seen in that light, the facts of the present case are glaring. The first notice proposing to make the variation was issued on 11.03.2024 and not earlier. Only three days' time was granted to the petitioner to respond to the same. At the same time, no assessment order came to be passed on the date fixed i.e. 15.03.2024. Rather, the Assessing Officer entertained the adjournment application moved by the petitioner on 16.03.2024 and fixed another date. However, for reasons not known to the Court and reasons that may never be speculated but in circumstance that do not admit of any valid reasons to exist, the Assessing Officer fixed the proceedings for very next date i.e. 17.03.2024. That was a Sunday. Therefore, it was obligatory without fail for the Assessing Officer to have fixed another date before he may have proceeded to pass the final order. Seen in that light, the written instructions received by Sri Ghildyal in compliance of the last order do not bring out any just fact explanation to the course adopted by the assessing authority. Copy of the written instructions have been marked as 'X' and retained on record. In light of the above, no u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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