Delhi High Court
Javin Construction Private ... vs National Faceless Assessment ... on 6 August, 2021
$~36
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 06.08.2021
+ W.P.(C) 7896/2021 & CM APPL. 24553-54/2021
JAVIN CONSTRUCTION PRIVATE LIMITED ..... Petitioner
Through: Mr.Ved Jain & Ms.Richa
Mishra, Advs.
versus
NATIONAL FACELESS ASSESSMENT CENTRE & ORS.
..... Respondents
Through: Mr.Udit Sharma, Adv. on
behalf of Ms.Vibhooti
Malhotra, Sr. Standing Counsel.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MR. JUSTICE NAVIN CHAWLA
MANMOHAN, J. (Oral)
The petition has been heard by way of video conferencing.
1. Present writ petition has been filed challenging the impugned
assessment order, notice of demand, show cause notice for imposition
of penalty under Section 274 read with Section 271AAC(1) and
penalty under Section 274 read with Section 270A of the Income Tax
Act, 1961 [the Act] dated 22nd April 2021.
Signature Not Verified
Digitally Signed
Signing Date:10.08.2021
20:23:07
2. Learned counsel for the Petitioner states that the impugned
assessment order has been passed without issuing a show-cause notice
and draft assessment order which is mandated under Section
144B(1)(xvi)(b) of the Act. He states that the Respondent's action is
violative of the principles of natural justice and the provisions of the
Section 144B.
3. Issue Notice. Mr.Udit Sharma, Advocate appearing on behalf of
Ms.Vibhooti Malhotra accepts notice for the respondents. He prays for
an adjournment on the ground that Ms.Vibhooti Malhotra, Senior
Standing Counsel, who is to appear in this case, is in some personal
difficulty. However, since this Court has disposed of number of
matters on the same issue, the request for adjournment is declined.
However, the respondent is given liberty to seek
variation/modification of the order in the event facts have been
suppressed from this Court or misstated in the petition.
5. This Court is of the view that Section 144B(1)(xvi)(b)
mandatorily provides for issuance of a prior show cause notice and
draft assessment order before issuing the final assessment order. The
relevant portions of Section 144B(1)(xvi)(b) as well as Section
144B(9) of the Act are reproduced hereinbelow:-
"144B. Faceless assessment -
(1) xxxx xxxx xxxx
xxxx xxxx xxxx
(xvi) the National Faceless Assessment Centre shall examine
the draft assessment order in accordance with the risk
Signature Not Verified
Digitally Signed
Signing Date:10.08.2021
20:23:07
management strategy specified by the Board, including by way
of an automated examination tool, whereupon it may decide to-
xxxx xxxx xxxx
(b) provide an opportunity to the assessee, in case any variation
prejudicial to the interest of assessee is proposed, by serving a
notice calling upon him to show cause as to why the proposed
variation should not be made; or
xxx xxx xxx
(9) Notwithstanding anything contained in any other provision
of this Act, assessment made under sub-section (3) of section
143 or under section 144 in the cases referred to in sub_section
(2) [other than the cases transferred under sub-section (8)], on
or after the 1st day of April, 2021, shall be non est if such
assessment is not made in accordance with the procedure laid
down under this section."
6. Since in the present case no prior show cause notice as well as
draft assessment order have been issued, there is a violation of
principles of natural justice as well as mandatory procedure prescribed
under "Faceless Assessment Scheme".
7. Keeping in view the aforesaid, the impugned assessment order,
notice of demand, show cause notice for imposition of penalty under
Section 274 read with Section 271AAC(1) and penalty under Section
274 read with Section 270A of the Act, dated 22nd April 2021, are set
aside and the matter is remanded back to the Assessing Officer, who
shall issue a draft assessment order and thereafter pass a reasoned
order in accordance with law.
8. With the aforesaid direction, the present writ petition along with
pending applications stands disposed of.
Signature Not Verified
Digitally Signed
Signing Date:10.08.2021
20:23:07
9. The order be uploaded on the website forthwith. Copy of the
order be also forwarded to the learned counsel through e-mail.
MANMOHAN, J
NAVIN CHAWLA, J
AUGUST 6, 2021/rv
Signature Not Verified
Digitally Signed
Signing Date:10.08.2021
20:23:07
