Dev Bahuudeshiva Sanstha Pusad ... vs The National E-Assessment ...
2021 Latest Caselaw 11225 Bom

                                                                                          1                                            W.P.No.1899.2021

                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       NAGPUR BENCH : NAGPUR

                                               WRIT PETITION NO. 1899 OF 2021

                                       Dev Bahuudeshiva Sanstha, Pusad,
                                                     ..VS..
                              The National e-Assessment Center, New Delhi and Ors.,
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Office Notes, Office Memoranda of Coram,                                                                   Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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                                               Shri Bhushan Mohata, Advocate for petitioner.
                                               Shri Anand Parchura, Advocate for respondents.


                                                            CORAM : SUNIL B. SHUKRE AND
                                                                    ANIL S. KILOR, JJ.

DATED : 18.08.2021

Heard.

2. Learned counsel for respondents seeks time to file additional reply in the matter as the rejoinder has been filed by the petitioner on 06.08.2021.

3. Learned counsel for the petitioner has no objection to grant further time provided interim relief is granted by this petition. The interim relief which he prays for is of staying the effect and operation of the assessment order dated 20.04.2021.

4. Learned counsel for the petitioner submits that the impugned assessment order has been passed without giving any opportunity of hearing to the petitioner and

thus it is in violation of principles of natural justice. He places reliance upon interim relief granted by the Division Bench of this Court at Principal Seat, Mumbai in the case of GSA Constructions Vs. National Faceless Assessment Centre & Ors., (2021) 203 DTR Judgments 305, on the grounds that no opportunity of hearing was given therein.

5. In this case also the petitioner takes an objection that when Section 144(B)(i) of the Income Tax Act makes a provision, inter alia, making variations to the draft assessment order, it is but natural that when the variations are proposed, a fresh show cause notice is served upon the assessee, which has not been done in the present case as required under Section 144(B) (7) of the Income Tax Act. He places reliance upon the judgment given by Delhi High Court in Writ Petition No.6484 of 2021, SRF Ltd. Vs. National Faceless Assessment Centre, Delhi and Anr., (2021) 204 DTR Judgments 153.

6. Shri Parchure, learned counsel for respondents submits that the final assessment order dated 20.04.2021, which has been challenged here by the petitioner is also challenged by the petitioner by filing of an appeal before the Commissioner, Income Tax (Appeals) under Section 256 of the Income Tax Act and, therefore, all these points can also be raised by the

petitioner before the Commissioner, Income Tax in that appeal.

7. As of now, we are not inclined to accept the contention that the principles of natural justice in the present case have been violated while passing the final assessment order as on facts, we do not find that prima facie, there is any violation of principles of natural justice and so the interim order passed by the Division Bench at Mumbai, will not help the petitioner, at least at this stage.

8. Although, by way of amendment, an averment has been made in the petition that personal hearing should have been given to the petitioner before the final assessment order was passed, the petitioner has nowhere stated in the petition that he had at any point of time demanded the final hearing. Upon a query made by us with the petitioner, it was submitted, on instructions, by learned counsel for the petitioner that no such demand of final hearing was made by the petitioner. Then, the impugned assessment order refers to several opportunities having been given to the petitioner to explain his stand and clarify the issue. But, it is seen that none of these opportunities was availed of by the petitioner. It is stated in the assessment order that in response to various notices, the petitioner made only one page written submission online dated 20.01.2021 during e-assessment proceedings and it states that it is a trust

running Education Institution, earned income from letting out of community hall, Kalyana Mandapam and Gnanvapi and utilized surplus income from letting out its space for achieving the objects of trust in running of an Educational Institution and providing of medical relief to the poor. However, it is further noted in the impugned order that the petitioner did not file any documents indicating grant of approval to it under Section 20 (23C)

(vi) of the Income Tax Act by the competent Authority. It is further noted that the assessee also did not furnish any document indicating approval under Section 12AA of the Income Tax Act issued by the competent Authority and, therefore, a conclusion has been made that the assessee trust never applied and was never granted any exemption either under Section 10(23C) or under Section 12AA of the Income Tax Act and therefore, would not be entitled to claim its income as exempted from the incidence of taxation.

9. A further perusal of the impugned order shows that after the written submission dated 20.01.2021, the assessee Officer had issued at least four notices under Section 142(1) of the Income Tax Act to the petitioner. These notices were of the dates of 24.02.2021, 05.03.2021, 24.03.2021 and 03.04.2021, which, as noted in the impugned order, remained unanswered by the petitioner. It is also seen from the impugned order that along with these notices, a questionnaire had been sent to the petitioner but, as noted in the impugned order, but

there was no response from the petitioner. It is not stated anywhere in the petition that the petitioner had not received these notices and that the statement of fact made in the impugned order regarding issuance of at least four notices under Section 142(1) of the Income Tax Act is incorrect or false.

10. With such facts being available on record, prima facie, showing granting of sufficient opportunity, it would not be possible for us to consider the prayer for grant of interim stay, at least at this stage, unless reasonable opportunity is given to the respondents to submit their additional reply in the matter.

11. As regards the judgment of Delhi High Court relied upon by the petitioner, we find that this judgment could be referred to us by the petitioner if this matter is to be heard on its own merits. As of now, this judgment not touching upon the aspect of personal hearing and resultant violation of principles of natural justice, we do not think, would come of any help to the petitioner.

12. Even otherwise, the maintainability of this petition before this Court which raises such issues as are also raised in the appeal already filed under Section 246 of the Income Tax Act which is pending for consideration of the competent Authority i.e. Commissioner of Income Tax (Appeals), Nagpur is also under doubt. The prayer

for interim relief is, therefore, rejected. Further time of two weeks is granted.

Stand over after two weeks.

                                        JUDGE                JUDGE




Kirtak