Gujarat High Court
Late Junedbhai Abdulgani Memon ... vs The National E-Assessment Centre on 8 May, 2025
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1180 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
=============================================
Approved for Reporting Yes No
No
=============================================
LATE JUNEDBHAI ABDULGANI MEMON (PARVINBANU JUNEDBHAI
MEMON, LEGAL HEIR)
Versus
THE NATIONAL E-ASSESSMENT CENTRE & ORS.
=============================================
Appearance:
MR VARIS V ISANI(3858) for the Petitioner(s) No. 1
MS MAITHILI D MEHTA(3206) for the Respondent(s) No. 3
NOTICE NOT RECD BACK for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
=============================================
CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 08/05/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)
1. Heard learned advocate Mr.Varis V. Isani for the petitioner and learned Senior Standing Page 1 of 27 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Jun 04 2025 Downloaded on : Fri Jun 06 21:24:30 IST 2025 NEUTRAL CITATION C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025 undefined Counsel Ms.Maithili D. Mehta for the respondents.
2. Rule, returnable forthwith. Learned Senior Standing Counsel Ms.Maithili Mehta waives service of notice of rule for and on behalf of the respondents.
3. Having regard to the controversy in narrow compass, with the consent of the learned advocates for the respective parties, the petition is taken up for hearing.
4. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the Assessment Order dated 27.04.2021 for Assessment Year 2018-19 on ground of breach of principles of natural justice. Page 2 of 27 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Jun 04 2025 Downloaded on : Fri Jun 06 21:24:30 IST 2025
NEUTRAL CITATION C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025 undefined
5. The brief facts of the case are as under :
5.1. The petitioner is a legal heir of late one Junedbhai Abdulgani Memon (hereinafter referred to as 'the assessee') who expired on 05.05.2020.
5.2. Late Junedbhai Abdulgani Memon filed return of income on 31.12.2018 declaring total income of Rs.3,48,780/- for Assessment Year 2018-19.
5.3. Thereafter, the case was taken up for scrutiny and notice under Section 143(2) of the Income Tax Act, 1961 (for short 'the Act') was issued on 28.09.2019 followed by notice under Section 142(1) of the Act. 5.4. The respondent thereafter issued the notices on 12.12.2019, 30.01.2020, 24.07.2020 and 31.08.2020 under Section 142(1) of the Act Page 3 of 27 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Jun 04 2025 Downloaded on : Fri Jun 06 21:24:30 IST 2025 NEUTRAL CITATION C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025 undefined in name of late Junedbhai Abdulgani Memon-
husband of the petitioner. Such notices were issued upon the previous authorised representative of the assessee on Email ID being [email protected] which was not verified and due to ill health of the assessee, he also could not visit the Office of the authorised representative during that period. Thereafter, the assessee expired on 05.05.2020 and wife of the assessee submitted reply on 20.11.2020.
5.5. Thereafter, notice under Section 142(1) of the Act was issued on 07.12.2020 calling upon the petitioner to furnish the details on or before 12.12.2020. The petitioner requested to grant ten days time as the details sought for was voluminous and English translation of all the sale-deeds were required to be submitted.
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NEUTRAL CITATION C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025 undefined 5.6. Thereafter, another notice dated 15.12.2020 was issued under Section 142(1) of the Act granting seven days time to the petitioner up to 21.12.2020. The petitioner filed the reply dated 22.12.2020 on Income Tax Portal requesting to grant one week's time and thereafter, the petitioner received the notice in the month of January, 2021 to make registration of the petitioner as a legal heir on the Portal. The petitioner carried out the process of registration as legal heir on the Portal and thereafter, again on 11.02.2021, another notice was issued directing the petitioner to submit details on or before 16th February, 2021 as per Annexure to the notice followed by notice dated 16.03.2021 to submit reply and the petitioner was granted seven days time to submit the reply. Pursuant to which, the petitioner filed reply and also Page 5 of 27 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Jun 04 2025 Downloaded on : Fri Jun 06 21:24:30 IST 2025 NEUTRAL CITATION C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025 undefined prayed for an opportunity for personal hearing through video conferencing in the said reply. 5.7. The petitioner applied for the adjournment which was granted and thereafter, the notice was issued on 12.04.2021. 5.8. It appears that the respondent suo- moto adjourned the matter on 12.04.2021, 21.04.2021 and 29.04.2021, however, the petitioner was not aware about such adjournments due to the prevailing Covid-19 pandemic situation at the relevant time and the adjournments were granted considering the fact that the petitioner and his family members were found positive for Covid. Thereafter, the video conferencing was scheduled on 22.04.2021 but the petitioner could not attend it due to Covid-19 pandemic situation and the petitioner and the family Page 6 of 27 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Jun 04 2025 Downloaded on : Fri Jun 06 21:24:30 IST 2025 NEUTRAL CITATION C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025 undefined was found Covid-19 positive on 20th April, 2021 and were home quarantined. However, such response was submitted on the portal and adjournment was sought up to 15th June, 2021. It appears that the respondent-Assessing Officer without considering the adjournment sought by the petitioner on portal, passed the impugned order dated 27.04.2021 without providing any opportunity of hearing to the petitioner.
5.9. Thus, it is apparent from the records that the impugned Assessment Order dated 27.04.2021 is passed by the respondent- Assessing Officer in violation of the principles of natural justice by not providing the opportunity of hearing as contemplated under Section 144B(1)(vii) of the Act.
6. Learned advocate Mr.Varis Isani for the Page 7 of 27 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Jun 04 2025 Downloaded on : Fri Jun 06 21:24:30 IST 2025 NEUTRAL CITATION C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025 undefined petitioner therefore submitted that the impugned Assessment Order may be quashed and set aside and the matter may be remanded back to the Assessing Officer to provide an opportunity of hearing to the petitioner and thereafter, pass a fresh de-novo order. 7.1. Learned Senior Standing Counsel Ms.Maithili Mehta appearing for the respondent-Authority referred to the affidavit-in-reply filed on behalf of the respondent and more particularly, the order- sheets annexed thereto. Reply is also filed in response to the order passed by this Court (Coram: Hon'ble Mr.Justice J.B.Pardiwala as His Lordship Was Then and Hon'ble Ms.Justice Nisha M. Thakore) on 25.01.2022 on seven queries raised therein. The order dated 25.01.2022 reads as under :
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NEUTRAL CITATION C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025 undefined "1 We have heard Mr.Varis Isani, the learned counsel appearing for the writ applicant - assessee and Mr. M. R. Bhatt, the learned Senior Counsel appearing for the respondent. 2 The subject matter of challenge in the present writ application is the assessment order dated 27th April 2021 for the assessment year 2018-19. It appears from the materials on record that the writ applicant herein was served with a show cause notice dated 12th April 2021 with respect to the assessment year 2018-19 calling upon the writ applicant to show cause as to why the assessment should not be completed in accordance with the draft assessment order.
3 To the aforesaid show cause notice, the writ applicant filed his objections Page 9 of 27 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Jun 04 2025 Downloaded on : Fri Jun 06 21:24:30 IST 2025 NEUTRAL CITATION C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025 undefined and also requested the authority concerned to grant an opportunity of personal hearing. This is evident from Annexure : J dated 23rd March 2021 at page : 59 of the paper book.
4 It is the case of the writ applicant that despite requesting the concerned authority to provide an opportunity of hearing, the authority ignored such request and proceeded to pass the final assessment order dated 27th April 2021 under Section 143(3) read with Section 144B of the Income Tax Act, 1961 (for short, "the Act"). In the final assessment order, the assessed income has been determined to the tune of Rs.2,39,28,280/-.
5 After the introduction of the mechanism of Faceless Assessment, as provided under Section 144B of the Act, Page 10 of 27 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Jun 04 2025 Downloaded on : Fri Jun 06 21:24:30 IST 2025 NEUTRAL CITATION C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025 undefined scores of petitions are coming up before us challenging the assessment orders on technical grounds like no opportunity of personal hearing was given, etc. 6 One question that is bothering us is whether the concerned authority is obliged in all matters to give personal hearing to the assessee just upon a formal request being made without any further clarification as to why the assessee needs a personal hearing. We are saying so because it is very easy for any assessee to make such a request.
Once such a request is made, is the authority thereafter obliged to provide such personal hearing and whether the failure of the same, would render the assessment order erroneous in law or not tenable in law. We would like to seek some clarifications from the C.B.D.T. on the following issues relating to the Page 11 of 27 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Jun 04 2025 Downloaded on : Fri Jun 06 21:24:30 IST 2025 NEUTRAL CITATION C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025 undefined faceless assessment:
(1) What is the normal time granted to the assessee to respond to a draft assessment order?
(2) Can the assessee request for an adjournment after the date specified in the notice/draft assessment order?
(3) In the response through a mail to an adjournment request, what does the word "null" mean ? Whether this means adjournment is granted, if yes, till which date is the adjournment granted?
(4) Whether the Department still follows this pattern and language when it comes to replying to a request for adjournment by an Assessee?
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NEUTRAL CITATION C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025 undefined (5) Whether the Department responds to any adjournment request by giving next date?
(6) Whether any documents can be uploaded on the Portal after the last specified date of the draft assessment order?
(7) When the assessee has filed detailed submissions pursuant to notices u/s 142(1)/143(2), opportunity of personal hearing is still required to be mandatorily given?"
7 Let Notice be issued to the respondent, returnable on 15th February 2022. Let there be an ad-interim order in terms of para 7(b).
8 On the returnable date, we expect the Page 13 of 27 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Jun 04 2025 Downloaded on : Fri Jun 06 21:24:30 IST 2025 NEUTRAL CITATION C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025 undefined C.B.D.T. to clarify on all the aforesaid issues by way of an affidavit-in-reply or otherwise."
7.2. The respondent therefore, has provided the answers to each of the questions as under
in the additional affidavit-in-reply filed in the month of April, 2025 as under :
"Q.1 What is the normal time granted to the assessee to respond to a draft assessment order?
Ans. The Assessment unit gives a reasonable time to the assessee to respond to the draft assessment order subject to the overall time limit for the completion of assessment proceedings as per the Income Tax Act 1961. As per para N of the SOP for Assessment Unit dtd. 03.08.2022 which provides timelines for obtaining Page 14 of 27 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Jun 04 2025 Downloaded on : Fri Jun 06 21:24:30 IST 2025 NEUTRAL CITATION C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025 undefined response to show cause notices (SCN), as per para N.1.3.1 response time of 7 days is provided from the issue of SCN and as per para N.1.3.2. Response time of 7 days may be curtailed keeping in view the limitation date for completion of assessments.
Q.2 Can the assessee request for an adjournment after the date specified in the notice/draft assessment order? Ans. E-proceedings' functionality of e- filing portal provides facility to the taxpayers to seek adjournment online against a notice issued by the Income tax authorities.
Further, the taxpayer can seek
adjournment against a notice after
the date specified in the
notice/draft assessment order with
the below conditions -
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NEUTRAL CITATION
C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025
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1. The "Adjournment sought up to"
should be greater than existing due date or latest approved due date (in case of adjournment given including suo-moto).
2. This date cannot exceed 15 calendar days from notice response due date and a date within 7 days prior to "Proceeding Limitation Date".
3. This date cannot exceed 15
calendar days from the system date where notice response due date is overdue and a date within 7 days prior to "Proceeding Limitation Date".
4. The "Adjournment sought up to"
date should be greater than existing notice response due date.
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NEUTRAL CITATION C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025 undefined
5. The adjournment sought date cannot exceed 15 calendar days from notice response due date or request submission date whichever is later. Q.3. In the response through a mail to an adjournment request, what does the word "null" mean? Whether this means adjournment is granted, if yes, till which date is the adjournment granted? Ans. When assessee makes any request of adjournment through the functionality in E-filing, he/ she fills in the date of adjournment. This request goes to Faceless Assessing Officer in ITBA, who can accept or reject this request... If AO wants to provide adjournment for any other date prior or later to the date requested, he/ she provides it to assessee by way of issue of letter. On perusal of order sheet/copy attached Page 17 of 27 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Jun 04 2025 Downloaded on : Fri Jun 06 21:24:30 IST 2025 NEUTRAL CITATION C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025 undefined for ready reference) of the case it can be seen that on 23.03.2021, the assessee sought opportunity of personal hearing. On 30.03.2021 letter was issued to the assessee vide DIN No. ITBA/AST/F//17/2020-21/1031915686(1) to formally apply for V. C., as per the procedure prescribed. Thereafter V. C. was accorded through video conferencing scheduled vide V.C. notice dtd. 16.04.2021 fixing V. C. on 22.04.2021 at 12.00 PM (copy enclosed), which was not attended by the assessee (Ref. order sheet entry dtd. 23.04.2021). Therefore, the AO passed order u/s. 143(3) of the Income Tax Act on 27.04.2021. However, it is not clear as to which communication shows the NULL value, as the same is not visible to Assessing Officer.
Q.4 Whether the Department still Page 18 of 27 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Jun 04 2025 Downloaded on : Fri Jun 06 21:24:30 IST 2025 NEUTRAL CITATION C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025 undefined follows this pattern and language when it comes to replying to a request for adjournment by an Assessee?
Ans. Same as 3 above.
Q.5 Whether the Department responds to any adjournment request by giving next date?
Ans. Yes, as per Para, E of SOP for AU dated- 03.08.2022 (SOP attached) Where adjournment is granted, AU to ensure that adequate time is given to the assessee to respond:
Adjournment up to 7 days where assessee seeks adjournment using the online option; Suo motu adjournment up to 7 days may be granted by the AU, if required."
Q.6 Whether any documents can be Page 19 of 27 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Jun 04 2025 Downloaded on : Fri Jun 06 21:24:30 IST 2025 NEUTRAL CITATION C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025 undefined uploaded on the Portal after the last specified date of the draft assessment order?
Ans. The Assessing Officer has option to block/unblock filing of responses from the assessee. The AO blocks filing of responses only when the permitted/ appointed date passed immediately when it is only the time barring date is very close. Otherwise the filing of response is not blocked.
Q.7 When the assessee has filed detailed submissions pursuant to notices u/s 142(1)/ 143(2), opportunity of personal hearing is still required to be mandatarily given?
Ans. Opportunity of personal hearing is available to the assessee only at the state of SCN u/s. 144B(6)(vii) as per the I.T. Act 1961. Further guidelines Page 20 of 27 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Jun 04 2025 Downloaded on : Fri Jun 06 21:24:30 IST 2025 NEUTRAL CITATION C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025 undefined are provided in the para N.2 - Personal hearing against SCN of the SOP for AU dtd. 03.08.2022."
7.3. Reference was also made to Standard Operating Procedure of the National Faceless Assessment Centre dated 03.08.2022 which is annexed at Annexure-R1 to the reply. 7.4. It was further submitted that the Directorate of System has provided the necessary instructions dated 04.03.2025 which is also annexed at Annexure-R2 to the reply, which read as under :
"Query-Can the assessee request for an adjournment after the date specified in the notice/draft assessment order? Answer- 'E-proceedings' functionality of e-filing portal provides facility to the taxpayers to seek adjournment Page 21 of 27 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Jun 04 2025 Downloaded on : Fri Jun 06 21:24:30 IST 2025 NEUTRAL CITATION C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025 undefined online against a notice issued by the Income tax authorities.
Further, the taxpayer can seek adjournment against a notice after the date specified in the notice/draft assessment order with the below conditions -
1. The "Adjournment sought up to"
should be greater than existing due date or latest approved due date (in case of adjournment given including suo-moto).
2. This date cannot exceed 15 calendar days from notice response due date and a date within 7 days prior to "Proceeding Limitation Date".
3. This date cannot exceed 15 calendar days from the system date Page 22 of 27 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Jun 04 2025 Downloaded on : Fri Jun 06 21:24:30 IST 2025 NEUTRAL CITATION C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025 undefined where notice response due date is overdue and a date within 7 days prior to "Proceeding Limitation Date"
4. The "Adjournment sought up to"
date should be greater than existing notice response due date.
5. The adjournment sought date cannot exceed 15 calendar days from notice response due date or request submission date whichever is later." 7.5. It was therefore submitted that henceforth, the assessee is provided sufficient time of fifteen days to submit the reply and the adjournments are granted subject to the conditions mentioned above. 7.6. Learned Senior Standing Counsel Ms.Maitili Mehta also invited the attention of Page 23 of 27 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Jun 04 2025 Downloaded on : Fri Jun 06 21:24:30 IST 2025 NEUTRAL CITATION C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025 undefined the Court to the order-sheet annexed at Page No.185 to demonstrate that after issuance of show-cause notice dated 12.04.2021, the assessment order was approved on 23.04.2021 without taking into consideration the adjournment request made by the petitioner on 20th April, 2021. It was pointed out from the Notings at page No.185 that show-cause notice to draft assessment order was issued on 16.03.2021 and the petitioner has filed the reply in response to the show-cause notice and sought for personal hearing and accordingly, the video conferencing was scheduled on 22.04.2021 but the assessee did not turn up. It was therefore also pointed out that the adjournment request which is placed on record by the petitioner on 20th April, 2021 was not within the knowledge of the assessment unit and accordingly, the impugned assessment order Page 24 of 27 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Jun 04 2025 Downloaded on : Fri Jun 06 21:24:30 IST 2025 NEUTRAL CITATION C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025 undefined was passed.
8. Considering the above facts of the case, it appears that at the relevant point of time in the year 2021, the proceedings of face less assessment was in a very nascent stage and the respondent-Authorities were under process of being acquainted with conducting the face less assessment proceedings and the assessment orders have been passed by the Assessment Unit without verifying the ITBA portal which is apparent from the facts on record.
9. Taking into consideration the replies submitted by the respondent as per the directions of the Central Board of Direct Taxes (CBDT) and the instructions issued by the Directorate of the systems which is reproduced herein above, we are hopeful that the respondents would be careful in passing Page 25 of 27 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Jun 04 2025 Downloaded on : Fri Jun 06 21:24:30 IST 2025 NEUTRAL CITATION C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025 undefined the Assessment Order and due care for verification of the available data including the adjournment requests made by the petitioners online would be taken so as to adhere to the principles of natural justice as well as the provisions of Section 144B of the Act.
10. In the facts of the case, it is not in dispute that the petitioner was not granted the opportunity of personal hearing despite the request was made for adjournment due to Covid-19 pandemic situation on 20th April, 2021, hence, the impugned Assessment Order is liable to be quashed and set aside.
11. Accordingly, the assessment order dated 27.04.2021 is hereby quashed and set aside and the matter is remanded to the respondent- Assessment Unit to pass a fresh de novo order Page 26 of 27 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Jun 04 2025 Downloaded on : Fri Jun 06 21:24:30 IST 2025 NEUTRAL CITATION C/SCA/1180/2022 JUDGMENT DATED: 08/05/2025 undefined after providing an opportunity of hearing to the petitioner in accordance with law. Such exercise shall be completed within a period of twelve weeks from the date of receipt of the copy of this order. Rule is made absolute to the aforesaid extent. No orders as to cost.
(BHARGAV D. KARIA, J) (P. M. RAVAL, J) PALAK Page 27 of 27 Uploaded by PALAK BRAHMBHATT(HC01391) on Wed Jun 04 2025 Downloaded on : Fri Jun 06 21:24:30 IST 2025