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TMI Blog2024 (8) TMI 1436X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 and several correspondence took-place between the faceless Assessing Officer and the petitioner in view of the Faceless Assessments Scheme as provided under section 144B of the Income Tax Act, 1961 (for short 'the Act'). 3.2 It is the case of the petitioner that the petitioner by reply dated 26.08.2022 submitted computation, Annual Report, details of TDS in Form 26AS and intimation under section 143(1) of the Act in support of the return filed. 3.3 The respondent thereafter issued notice under section 142(1) of the Act on 31.10.2022 which was replied by the petitioner on 15.11.2022. Another notice dated 02.11.2022 was issued under section 142(1) of the Act seeking various details which was supplied by the petitioner by replies dated 05.11.2022 and 15.11.2022. 3.4 The third notice under section 142(1) was issued on 17.11.2022 which was also replied by the petitioner on 19.11.2022 and 24.11.2022. 3.5 It appears that thereafter the case of the petitioner was transferred by order dated 12.12.2022 from faceless Assessing Officer to the respondent Jurisdictional Assessing Officer under section 144(B)(8) of the Act. 3.6 The respondent-Jurisdictional Officer again issued notice unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring and make submissions to the proposed addition. It was submitted that the same procedure ought to have been followed by the Assessing Officer in view of the above instruction dated 29.12.2015. 4.2 Learned advocate Mr. Soparkar also referred to and relied upon the Instruction No. 3/2018 dated 28.08.2018 issued by the CBDT to submit that in cases where the assessment proceedings being carried out through E-proceedings, the personal hearing and attendance may take place where the show-cause notice contemplating any adverse view is issued. It was submitted that in absence of the show-cause notice prior to passing of the impugned order, the petitioner could not avail the benefit of the aforesaid instruction to get the opportunity of personal hearing and attendance before the respondent-Assessing Officer. 4.3 Learned advocate Mr. Soparkar also referred to and relied upon the letter (F) No. 225/162/2016/ITA.II) dated 11.07.2016 whereby, the format of notice under section 143(2) of the Act is prescribed in all cases of limited scrutiny, complete scrutiny and manual scrutiny which contains Clause-4 to the effect that specific questionnaire/ show-cause notice shall be given to the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at show cause notice is required to be issued before passing the assessment order so as to provide opportunity of hearing to the assessee if any additions are to be made by the assessing officer. 5. On the other hand, learned Senior Standing Counsel Mr. Karan Sanghani for the respondent-Assessing Officer referred to and relied upon the facts disclosed by the Assessing Officer in the impugned assessment order to contend that the petitioner-assessee is given ample opportunity by issuing notice under section 142(1) of the Act on six occasions as is evident from the record and reliance was placed on the contents of the notice under section 142(1)(2) to demonstrate that the petitioner was called upon to show cause for making various additions by the Assessing Officer. Referring to such notice under section 142(1) of the Act, it was submitted that the petitioner now cannot complain about the breach of the natural justice by not providing an opportunity of hearing as the Assessing Officer has referred to the submissions made by the petitioner-assessee while framing the assessment order. 5.1 It was submitted that the petitioner can raise all the contentions which are raised in this petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised so for will be decided on the basis of the material available with this office," 9. Further, in response to the Show Cause Notice issued on 20.12.2022, the assessee has not sought any personal hearing, which is a mandatory condition for allowing personal hearing as per laid down procedure for handling of assessment by JAO received on transfer from Faceless Assessment u/s 144B(8) of the Act issued vide F.No.225/97/2021/ITA-II dated 06.09.2021. 10. Thus, contention of the assessee that the replies of the assessee were not considered as well as the order passed u/ s. 143(3) of the Act was without issuing show cause notice cum draft assessment order is incorrect and liable to be rejected." 6. Referring to the above averments, it was submitted that the petition may not be entertained in view of the fact that sufficient opportunity was provided by the Assessing Officer to the petitioner and therefore, the petitioner cannot now agitate for not providing an opportunity of hearing relying upon the instructions and letters of the CBDT. It was also pointed out that as per provision of section 144B(8) of the Act, the respondent-Assessing Officer is required to conduct proceedings b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all 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 Department; IV. where show-cause notice contemplating any adverse view is issued by the Assessing Officer and assessee requests through their 'E-filing' account for personal hearing to explain the matter. However, details have to be uploaded on ITBA subsequently." 11. Letter dated 11.07.2016 provides for the draft of the notice to be issued under section 143(2) of the Income Tax Act,1961. Clause 4 thereof reads as under: "4. Specific questionnaire/show cause notice shall be sent giving you another opportunity i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Document Identification Number (DIN). (iv) In cases where assessment proceedings are being carried out through the 'E-Proceeding' as per para (i) above, personal hearing/attendance may take place in following situation(s): a. Where books of account have to be examined; b. Where Assessing Officer invokes provisions of section 131 of the Act; c. where examination of witness is required to be made by the assessee or the Department; d. Where a show cause notice contemplating any adverse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the request for personal hearing shall be allowed after the assessee has filed written submissions to the show-cause notice meaning thereby that the show cause notice is a prerequisite for granting personal hearing to the petitioner assessee and in absence of the show-cause notice, no opportunity of personal hearing would be made available to the assessee in cases which are transferred from faceless Assessment Unit to the Jurisdictional Assessing Officer. Reliance placed by the learned advocate for the respondent on the notices issued under section 142(1) of the Act would not be of any help as section 142(1) is with regard to the inquiry before the assessment where the Assessing Officer for the purpose of making the assessment under the Act may serve any person who has made a return for furnishing the return, a notice requiring to provide various details for the purpose of framing the assessment. As the petitioner assessee has furnished all the details it would be incumbent upon respondent Assessing Officer to issue show cause notice for the proposed addition duly indicating the reasons for the proposed addition/disallowance along with necessary evidence/reasons forming the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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