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TMI Blog2025 (3) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... btaining further information, documents or evidence has not been gone through in case of the Petitioner, and straightaway, the impugned assessment has been finalized. Thus, there has been a blatant violation of the mandatory procedure prescribed under the Faceless Assessment Scheme as stipulated u/s.144B of the Act as held in case of Akashganga Infraventures Indi Ltd. Vs. National Faceless Assessment Centre [2021 (8) TMI 1343 - DELHI HIGH COURT]
Thus, the present petition succeeds and is accordingly allowed. The matter is remanded back to the AO by quashing and setting aside the impugned assessment order as well as demand notice u/s 156 of the Act, as well as the notice for penalty u/s 271(1)(C) read with Section 274. X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of K- Star group at Surat, various incriminating documents were found which showed that the said group had purchased Block No.247 for Rs. 63,50,000/- and Block no. 243 for Rs. 5,60,00,000/- (which was held by Rohit C Modi HUF jointly with Smt. Poonam R. Modi). The Petitioner filed his ITR showing the same income of Rs. 13,78,560/- on 21.04.2021, in response to this notice. 4.2 During the course of assessment proceedings, the Respondent issued a notice u/s 143(2) read with Section 147 dated 21.05.2021 providing a "Gist" of reasons recorded for reopening which alleged that the provisions of Section 50C were attracted to both the transactions relating to the lands at Block no. 243 & 247, as a result of which income of Rs.3,43,50,000/- had escaped assessment. The Petitioner, vide reply dated 05.07.2021 pointed out that since the transaction in respect of land bearing Block no. 247 was made during the assessment year 2016-17, relevant to previous year 2015- 16, the same was declared in the ITR for A.Y. 2016-17 as per the copy of ITR filed with it and there was loss of Rs.43,35,333/-. As far as transaction relating to land bearing Block no. 243 is concerned, it was stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1961 (hereinafter referred to as 'the Act') dated 12.03.2022, and demand notice dated 12.03.2022 and notice dated 12.03.2022 for the penalty u/s. 274 read with Section 271(1)(C) of the Act for the Assessment Year 2014-15 issued by the Assessing Officer, alleging it to be illegal, bad in law and without jurisdiction, does not deserve to be entertained, as the petitioner has failed to disclose violation of any of his fundamental and/or statutory and/or legal rights which can be enforced by the way of petition under Article 226 of the Constitution of India. It was submitted that the impugned order and impugned notices are not only legal, just and proper but also well within the jurisdiction of the Assessing officer. Moreover, there is no illegality or irregularity while issuing the impugned order and impugned notices. 6.1 He has further submitted that the assessee has an alternative remedy available in the form of appeal before the CIT(A) and then before the Hon'ble ITAT. In this regard, reliance is also placed in the case of Commissioner of Income-tax vs. Chhabil Dass Agarwal reported in ITR 357 (SC)/[2013] 261 CTR, wherein, the Hon'ble Supreme Court has held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re laid down in sub-clause (b) of clause-(xvi), furnished his response to the National Faceless Assessment Centre on or before the date and time specified in the notice or within the extended time, if any. (xxiii) The National Faceless Assessment Centre shall - a) Where no response to the show cause notice is received as per clause - (xxii) - xxxxxxx xxxxxxx b) In any other case, send the response received from the assessee to the assessment unit (xxiv) The assessment unit shall after taking into account, the Response furnished by the assessee make a revised draft assessment order and send it to the National Faceless Assessment Centre. (xxv) The National Faceless Assessment Centre shall upon receiving the revised draft assessment order - a) Xxxx b) In case the variations proposed in the revised draft assessment order are prejudicial to the interest of the assessee in comparison to the draft assessment or the final draft assessment order, provide an opportunity to the assessee, by serving a notice calling upon to him to show cause as to why the proposed variation should not be made. (xxvi) The procedure laid down in clause (xxili), (xxiv) and (xxv) shall apply muta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment Scheme as stipulated u/s.144B of the Act as held in case of Akashganga Infraventures Indi Ltd. Vs. National Faceless Assessment Centre by Delhi High Court, reported in 2021 (130) Taxmann.com 401 (Delhi) as under:- "6. Since in the present case no prior show-cause notice as well as draft assessment order had been issued before passing the impugned assessment order, there is blatant violation of principles in "Facelss Assessment Scheme" as stipulated in Section 144B of the Act. 8 This Court, in the case of Kottex Industries Pvt. Ltd. Vs. National Faceless Assessment Centre, Government of India, reported in [2023] 450 ITR 685 (Guj.), has held as under :- "6. Considering the rival submissions made by both the sides the only question which is required to be considered is that, whether the respondent authorities have followed the due procedure of law as envisaged under Section 144B(1)(xvi) read with Section 144B(7)(vii) and (xii) of the Act or not, while passing the impugned assessment order dated 26th September, 2021. 7. The answer to the above question are not res integra inasmuch as the provision of Section 144B of the Act which provides for Faceless Assessment for the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in (2021) 6 SCC 771, has held as under :- "27 (iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) thee has been a violation of the principles of natural justice; (c) the order of proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged. In view of the clear ratio of the Hon'ble Apex Court as laid down in Radha Krishan Industries (Supra), once this Court comes to the conclusion that there is violation of the principles of natural justice, then the present case would fall within the exception of seeking an alternate remedy. 10. In view of the discussion herein above, the present petition succeeds and is accordingly allowed. The matter is remanded back to the Assessing Officer by quashing and setting aside the impugned assessment order dated 12.03.2022, as well as demand notice dated 12.03.2022 under Section 156 of the Act, as well as the notice for penalty dated 12.03.2022 under Section 271(1)(C) read with Section 274 of the Act. The Assessing Officer shall issue a fresh show cause notice along with the draft ..... X X X X Extracts X X X X X X X X Extracts X X X X
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