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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 ..... proceedings are being carried out through E-proceedings includes all the cases other than cases covered under the E-Assessment Scheme ,2019, personal hearing/attendance may take place where a show-cause notice contemplating any adverse view is issued by the AO and the assessee requests through the E-filing account for personal hearing to explain the matter. Thus, when the case of the petitioner is transferred to AO u/s 144 (B)(8), the Circular dated 06.09.2021 would be applicable which also provides for that 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 JAO. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... putation, 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 under section 142(1) of the Act on 13.22.2022 seeking various details which was supplied by the petitioner by replies dated 17.12.2022 and 19.12.2022. Thereafter, fifth notice under section 142(1) was issued by the respondent on 19.12.2022 seeking further details which was also replied by the petitioner on 21.12.2022. The sixt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 assessee so as to provide another opportunity in case any adverse view is contemplated. It was submitted that though the notice under section 143(2) is issued by the respondent- Assessing Officer as is evident from the screenshot of the portal placed on record on 27/28th June,2022, the Assessing Officer has not issued any show-caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 petition in the appeal which is already filed before the CIT (A) which is sub-judiced and therefore, this petition should not be entertained at this stage permitting the petitioner to raise all the contentions before the CIT (A). 5.2 Learned advocate Mr. Sanghani thereafter referred to and relied upon affidavit-in-reply filed on behalf o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 by way of E-proceedings only and accordingly, the respondent has given ample opportunity to the petitioner to make submissions. 7. Having heard learned advocate for the respective parties it is necessary to refer to the provisions of 144B(8) of the Act under which the case of the petitioner was transferred to the Jurisdictional Assessing Officer from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endance 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 in case any adverse view is contemplated. 12. Circular No. 27/2019 dated 26.09.2019 is very crucial in the facts of the case as the said circular is applicable to the cases which are not covered by the E-assessment Scheme the said circular reads as under: SECTION 143 OF THE INCOME-TAX ACT, 1961 - ASSESSMENT - GENERAL - CONDUCT OF ASSESSMENT PROCEEDINGS THROUGH 'B-PROCEEDING' FACILITY DURING FINANCIAL YEAR 2018-29 CIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, 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 view is issued by the Assessing Officer and assessee requests through their E-filing account for personal hearing to explain the matter. However, the details pertaining to above shall be uploaded on ITBA subsequently. 2. This may be brought to the notice of all concerned for immediate compliance. 13. Similarly, the Circular dated 06.09.2021 is also applicable to the cases which are not covered by the Faceless Assessment Scheme as per section 144B(1)/(2) of the Act and Clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvocate 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 of the same as per the Instruction No. 20/2021 read with Circular No. 27/2019 to enable the petitioner to avail the opportunity of hearing in compliance of the principle of natural justice. 16. In view of the foregoing reasons we are of the opinion that the Assessing Officer has committed fragrant breach of the principle of natural justice by not issuing show-cause notice indicating reasons for proposed addition/disallowance along with necessary evidence forming basis of the same and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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