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TMI Blog2024 (11) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... invalid. It needs no elaboration that when an order under a statute is to be passed which would entail civil consequences, causing a prejudice to the person, against whom it is being passed, such order would be required to be passed in strict adherence to the principles of natural justice i.e. after issuance of a show cause notice and an opportunity of a hearing being granted. It is well settled that an order passed in breach of the principles of natural justice would be required to be held to be vitiated, non-est and a nullity. In the present case, the impugned assessment order is passed without issuance of a show cause notice and an opportunity of a hearing being granted to the petitioner. As noted above, Section 144B inheres the application of the principles of natural justice. For such reasons, the impugned order would be manifestly illegal and a nullity in the eyes of law. This is a fit case, wherein the impugned order would deserve to be quashed and set aside, so that further appropriate procedure as recognized by law under the relevant provisions of the IT Act can now be followed and an appropriate assessment order in accordance with law passed. Petition allowed. - G. S. K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time to furnish appropriate information. However, as the information was not complete and the petitioner was desirous of furnishing further information, a specific request to that effect was made by the petitioner in its reply, that the petitioner was in the process of collecting the details with reference to such issues as raised and requested for an adjournment to provide such details. Paragraph 26 of the reply in that regard makes such request. Thereafter, the petitioner furnished further details under petitioner s letter dated 05 February 2021 and 17 February 2021. 4. On such backdrop, the case of the petitioner is that it was expected that in the event the Assessing Officer was to take any position which was to be prejudicial to the interest of the petitioner, the procedure as permitted in law under Section 144B, was required to be followed, in as much as, a show cause notice-cum-draft assessment order was required to be issued to the petitioner. However, it did not so happen as on 12 June 2021 without following such mandatory provisions of law, so as to issue a show cause notice-cum-draft assessment order, respondent no.1 proceeded to pass the impugned assessment order. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide communication dated 20 September 2021, the petitioner also filed an appeal before the RTI Appellate Authority on 22 October 2021. The case of the petitioner is that based on the impugned assessment order, which according to the petitioner is illegal, recovery proceedings were initiated against the petitioner on 22 December 2021. On 07 January 2022, in such circumstances, the petitioner also filed a stay application. 8. The petitioner contends that the impugned assessment order is clearly contrary to the provisions of Section 144B of the IT Act, hence, the petitioner has filed the present petition praying for the following substantive reliefs:- (a) Hold, order and declare that the Impugned order u/s 143(3) r.w.s 144B of the Act dated 12 June 2021 (Exhibit A) and consequential demand notice dated 12 June 2021 (Exhibit B) are wholly without jurisdiction, illegal, arbitrary, violate the principles of natural justice and are liable to be quashed; (b) Issue a Writ of Certiorari or a Writ in the nature of Certiorari, or any other appropriate Writ, order or direction under article 226 of the Constitution of India quashing the Impugned order u/s 143(3) r.w.s 144B of the Act dated 12 Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d submitted that the impugned order needs to be set aside. 11. Mr. Suresh Kumar, learned counsel for the Revenue in making his submissions, has placed reliance on the reply affidavit. He would fairly state that there is no material on the basis of which the petitioner s contention on the show cause notice cum draft assessment order being not supplied to the petitioner, could be contested by the department. He is not in a position to dispute that the assessment order was passed in the absence of mandatory compliance/ requirement which is required to be complied by respondent no.1. 12. It is on the aforesaid conspectus, we have heard learned counsel for the parties. With their assistance, we have perused the record. At the outset, as the case of the petitioner is primarily to the effect that the impugned order is contrary to the provisions of Section 144B(1)(xiv), (xix), (xx) and (xxii) of the IT Act, as applicable at the relevant time, the said provisions are required to be noted which read thus:- Faceless Assessment Section 144B (1) Notwithstanding anything to the contrary contained in any other provisions of this Act, the assessment under sub-section (3) of section 143 or under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a bare reading of the said provisions, it is clear that it was incumbent on the part of respondent no.1 to issue to the petitioner a show cause notice in case any variation prejudicial to the interest of the petitioner was to be proposed. It was also mandatory that the petitioner ought to have been granted an opportunity to respond to such show cause notice-cumdraft assessment order on the variations prejudicial to the assessee being proposed and only after considering the objections, further procedure was required to be adopted. Admittedly, such procedure was not adopted being the mandatory procedure as prescribed by the provisions of Section 144B as noted by us hereinabove. 14. It is thus clear that once there was an inherent and incurable defect the assessment order, when tested on the anvil of the said mandatory provisions of the Act, we would agree with Mr. Naniwadekar that the assessment order would be required to be held to be vitiated. We would also agree with Mr. Naniwadekar that in these circumstances, the petitioner need not be relegated to pursue the appellate remedy, as the petitioner ought not to be left entangled in litigation before the appellate authority, and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecognized in the provisions of Section 144B of the IT Act. Any non-adherence to the mandatory requirement of the statutory provisions and such principles as recognized by it, would render the assessment order patently illegal. The action of the respondents which is contrary to the mandate of the statutory provisions or in breach of the principles of natural justice would be rendered illegal and invalid. It needs no elaboration that when an order under a statute is to be passed which would entail civil consequences, causing a prejudice to the person, against whom it is being passed, such order would be required to be passed in strict adherence to the principles of natural justice i.e. after issuance of a show cause notice and an opportunity of a hearing being granted. It is well settled that an order passed in breach of the principles of natural justice would be required to be held to be vitiated, non-est and a nullity. In the present case, the impugned assessment order is passed without issuance of a show cause notice and an opportunity of a hearing being granted to the petitioner. As noted above, Section 144B inheres the application of the principles of natural justice. For such r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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