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TMI Blog2024 (6) TMI 1303X X X X Extracts X X X X X X X X Extracts X X X X ..... are to be record. As per Circular No. 06.09.2021 respondent Assessing Officer was required to give personal hearing to the petitioner and if it is not technically possible through video conference, then the personal hearing ought to have been conducted in a designated area of the Income Tax office. Therefore, the contention of the respondent which is stated on oath is contrary to the circular issued by the CBDT. The contention raised on behalf of the respondent that the petitioner has alternative efficacious remedy to file appeal before the CIT (Appeal) the petition may not be entertained is also not tenable in view of the fact that there is a breach of principle of natural justice by not providing opportunity of hearing to the petitioner though required as per the provisions of section 144B read with circular issued by the CBDT dated 06.09.2021 which is binding upon respondent-Assessing Officer in view of the settled legal position Hon ble Supreme Court in case of Whirlpool Trade Marks, Mumbai And Others [ 1998 (10) TMI 510 - SUPREME COURT ] Similarly, the contention raised on behalf of the petitioner that the jurisdictional officer has passed the impugned order without jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner has appealed against the order u/s 263 of the Act dated 27.03.2023 and the same is pending before the Income Tax Appellate Tribunal. 5.3 Meanwhile, the proceedings consequent to the order u/s 263 of the Act commenced and the following correspondence took place: Date Event Date Event 12.10.2023 Intimation Notice by the Respondent 2 Annexure D 29.11.2023 Notice u/s. 142 (1) by respondent No. 1 Annexure E1 21.12.2023 Adjournment Request Annexure E2 11.12.2023 Notice u/s. 142 (1) by Respondent 1 Annexure F1 11.12.2023 Letter withdrawing the notice dated 11.12.2003 Annexure F2 08.02.2024 SCN by respondent 1 Annexure G1 15.02.2024 Reply by petitioner Annexure G2 01.03.2024 Letter Annexure H1 04.03.2024 05.03.2024 06.03.2024 07.03.2024 08.03.2024 Reply submitted Annexure H2 Colly 6. Learned advocate Mr. Soparkar submitted that the petitioners specifically asked for personal hearing in both the submissions dated 15.02.2024 and 08.03.2024 but the respondent No. 1 passed impugned order on 18.03.2024 without providing opportunity of personal hearing in violation of principle of natural justice and passed the impugned assessment order, assessing total income at Rs. 12,59,28,000/- raising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior Standing Counsel Mr. Karan Sanghani submitted that the petition may not be entertained in view of the alternative efficacious remedy available to the petitioner by preferring the appeal before the CIT(A) and further appeal before the Appellate Tribunal. 7.1 It was submitted that the contention raised by the petitioner that the respondent-Assessing Officer as being the jurisdictional Assessing Officer has no jurisdiction to pass impugned order in view of the fact that assessment for A.Y. 2018-19 was finalized by the assessment unit being National Faceless Assessment Center under section 143 (3) on 18.01.2021, by accepting return income and subsequently, pursuant to the order dated 27.03.2023 passed under section 263 of the Act, Assessing Officer was directed to make appropriate inquiry in relation to the transaction of Rs. 12,59,28,000/- and appropriately disallowed the same under section 68 read with section 115BE of the Act and accordingly, the proceedings under section 143 (3) read with section 263 was initiated and case was transferred to faceless assessment unit on 12.10.2023 as per section 144B of the Act and thereafter case proceeding were transferred from National Facele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessments/penalties to Jurisdictional Assessing Officers (PAN based), as found necessary, on case-to-case basis in terms of Section 4B(8) of the Income-tax Act, 1961 (Act)/clause 5(2) of Faceless Penalty Scheme, 2021. 2. The Jurisdictional Assessing Officer (JAO) shall complete the assessments/penalties in such cases as per the following broad contours to the extent technically feasible:- A. All processes in cases transferred under section 144B (8) of the Act/clause 5 (2) of Faceless Penalty Scheme, 2021 may be conducted electronically to the extent technically feasible, except in those cases where the assessee does not have e-filing account/registered e-mail to communicate electronically with JAO. For cases without digital foot print, the JAO shall endeavor to get the filing account of the assessee registered and then conduct the proceedings in an electronic manner. B. The request for personal hearings shall generally be allowed to the assessee with the approval of Range Head, mainly after the assessee has filed written submission to the show cause notice, Personal hearing may be allowed to the assessee preferably through Video Conference. If Video Conference is not technically f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer proposes to make additions or disallowances, the assessee would be given a fair opportunity to explain his position on the proposed additions/disallowances in accordance with the principle of natural justice. In this regard, the Assessing Officer shall issue an appropriate show cause notice duly indicating the reasons for the proposed additions/disallowances along with necessary evidences/reasons forming the basis of the same. Before passing the final order against the proposed additions/disallowances, due consideration shall be given to the submissions made by the assessee in response to the show cause notice. 10. Similarly, the Instruction No. 3/2018 and 1/2018 provide for personal hearing in case of show-cause notice contemplating any adverse view issued by the Assessing Officer reads as under: In cases where assessment proceedings being carried out through the E Proceeding as per para 4 above, personal hearing/attendance may take place in following situation(s): I. where books of account have to be examined; II. where Assessing Officer invokes provisions of section 131 of the Act; III. where examination of witness is required to be made by the concerned assessee or the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be dealt as per clause (f) below; b. In set aside assessments; c. Assessments being framed in non-PAN cases; d. Cases where Income-tax return was filed in paper mode and the assessee concerned does not yet have an 'E-filing account; e. In all cases at stations connected through the VSAT or with limited capacity of bandwidth (list of such stations shall be specified by the Pr. DGIT (System)); f. In cases covered under para 1(i) above, the jurisdictional Pr. CIT/CIT, in extraordinary circumstances such as complexities of the case or administrative difficulties in conduct of assessment through E-Proceeding , can permit conduct of assessment proceedings through the conventional mode. It is hereby further directed that Pr.CIT/CIT is required to provide such relaxation only in extraordinary circumstances after examining the necessity for such relaxation and recording the reasons for Page 22 of 29 Downloaded on providing such relaxations. (iii) However, it is clarified that issue of notices and departmental communications in such cases shall be strictly governed by the guidelines issued by CBDT vide its Circular No. 19/2019 dated 14-8-2019 regarding generation/allotment/quoting of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment Scheme, 2019, personal hearing/attendance may take place where a show-cause notice contemplating any adverse view is issued by the Assessing Officer and the assessee requests through the E-filing account for personal hearing to explain the matter. 12. Similarly, the contention raised on behalf of the petitioner that the jurisdictional officer has passed the impugned order without jurisdiction is also not tenable in view of the notings made in the order sheet in view of the fact that the assessment proceedings were conducted pursuant to the order passed under section 263 and therefore, the same is required to be conducted by jurisdictional Assessing Officer. 13. In view of the foregoing reasons, the petition partly allowed and impugned assessment order dated 18.03.2024 is hereby quashed and set aside. The matter is remanded back to the respondent No. 1 Assessing Officer to give opportunity of hearing to the petitioner either through video conference or through personal hearing in the designated area of the income tax office as per the para 2B of the Circular dated 06.09.2021 issued by the CBDT. 14. Such exercise shall be completed within twelve weeks from the date of recei ..... X X X X Extracts X X X X X X X X Extracts X X X X
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