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TMI Blog2024 (11) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 227 of the Constitution of India is required to be exercised sparingly and a self-restraint is required to be maintained on the entertainment of a writ challenging the orders where alternative efficacious remedy is available. However, in the gross facts of the present case, we are constrained to exercise our extra-ordinary jurisdiction as the Assessing Officer has not considered the documents placed on record and without referring to the same, has made vague observations, which are not tenable in the eyes of law and therefore, we are left with no other option but to entertain this petition in the facts of the case. This Court is of the view that the impugned assessment order has been passed without considering the documents placed on record and therefore, the same is not tenable in the eyes of law. Decided in favour of assessee. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABLE MR. JUSTICE D.N. RAY Appearance: For the Petitioner(s) No. 1 : Mr Deepak R Shah With Mr Tej Shah (5743). For the Respondent(s) No. 1: Mr Nikunt K Raval (5558). ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Heard learned advocate Mr. Deepak R. Shah for the petitioner and learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... National Faceless Assessment Center (NFAC Or NeAC) reported in [2021] 131 taxmann.com 165 (Bombay). 3. Notice for final disposal returnable on 14.12.2021. 3.1 Interim relief in terms of para 6(b) is granted till returnable date. 4. The brief facts of the case are as under; The petitioner, a partnership firm, is engaged in the business of manufacture and sale of Tobacco. The petitioner filed the Return of Income for the Assessment Year 2018-19 on 02.10.2018 declaring income of Rs. 4,10,940/-. 4.1 The case of the petitioner was selected for scrutiny and Notice u/s. 142 (1) of the Income Tax Act, 1961 (for short, the Act ) was issued on 17.01.2020 seeking various details, which was followed by further Notice dated 20.01.2021. The petitioner filed reply dated 01.02.2021 in response to the Notice. 4.2 The petitioner, thereafter, received Notice dated 19.03.2021 in the form of a Draft Assessment Order proposing to make an addition of Rs. 1,16,98,952/- u/s. 68 of the Act on the ground that the petitioner had repaid the loan during the year under consideration. 4.3 The petitioner, by reply dated 23.03.2021, submitted documents in respect of each of the deposits / loan accounts where fresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creditworthiness of the unsecured loans received. 4. As per the principles of natural justice, a show cause notice incorporating draft assessment order was issued to assessee on 20.08.2021 wherein it was requested to submit the reply on or before 25/08/2021. In response to this, the assessee has not furnished any documentary evidences and requested for a video conference which was scheduled on 30/08/2021. The assessee did not attend the video conference due to technical reasons as stated by the assessee vide response dated 04/09/2021. Further, the assessee requested for rescheduling the video conference and adjournment of 5 days for submitting the response to the show cause notice. On assessee s request video conference was re-scheduled on 16/09/2021, which was conducted successfully. In the video conference, the AR of the assessee has attended and discussed the same submission which was already made earlier. 5. In light of the submissions furnished by the assessee, it is noticed that, the assessee has received unsecured loan from 14 different parties amounting to Rs. 2,06,92,496/-. During the financial year, the assessee has filed his return of income declaring total income of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... severe hardship because of such huge addition and hence, the impugned assessment order is required to be quashed and set aside. 7. On the other hand, learned advocate Mr. Sanghani for the respondent Assessing Officer submitted that the petitioner has availed the alternative efficacious remedy by preferring an appeal before the CIT (Appeals), which was withdrawn by the petitioner during the pendency of this petition and therefore, this petition does not deserve to be entertained. It was submitted that the petitioner was provided with ample opportunities of hearing and after taking into consideration the replies filed by the petitioner from time to time, the Assessing Officer has passed the impugned assessment order. It was submitted that if the Assessing Officer has committed any error by not considering the reply, the same ought to have been agitated by the petitioner before the CIT (Appeals) and the non-consideration of reply cannot be treated as a breach of natural justice so as to invoke the extra-ordinary jurisdiction under Article 227 of the Constitution of India. 8. In support of his submissions, learned advocate Mr. Sanghani referred to and relied upon the following avermen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the assessee shows that there is no violation of any provision of the Act as stated by the assessee. 8. With reference to para 3.6, the respondent denies each and every allegation, averment and contention raised therein. It is further submitted that in the present case,as per the order sheet there is only reference for the application u/s.144A on 07.09.2021 (page 15 of order sheet) with the following remark: Sir, We have made an application u/s.144A to Jt.Commissioner of Income Tax. We request your Honour to kindly not to pass any order till the disposal of application u/s 144A of the Act. For your reference we herewith attached copy of application submitted to Jt. Commissioner of Income Tax. It is submitted that the remark clearly shows that the assessee has requested the Faceless Assessing Officer not to pass order till the application is disposed off by the JCIT. There is no request to forward the same to the JCIT. Therefore, the allegation is totally wrong. It is further submitted that although the assessment under consideration was pending with NFAC but the assessee filed application u/s.144A on 07.09.2021 to the jurisdictional range office i.e. Addl. CIT Range 1 (1), Va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessment proceedings under Faceless regime. 9. Having heard the learned advocates for the respective parties and considering the facts of the case emerging from the documents placed on record, it appears that the petitioner has furnished all the relevant documents containing the copy of the ledger account from its audited books, confirmation of respective depositor with PAN Number, copy of its bank statements, copy of the ITR filed by the respective depositors, copy of the bank statements of respective depositors from where the funds were provided, which is evident from the paper-book filed by the petitioner in this petition as it contains the documents submitted during the assessment proceedings. It is pertinent to note that no dispute has been raised by the respondent with regard to submission of the aforesaid documents by the petitioner during the assessment proceedings. 10. In view of the above, the observations made by the Assessing Officer in the impugned order, more particularly, in paragraph Nos.3 and 5 reproduced hereinabove, are nothing but vague observations and are contrary to the facts on record. The Assessing Officer has, without any reference to any of the do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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