Delhi High Court
Assotech Realty Private Limited vs National E-Assessment Centre ... on 21 February, 2022
$~62
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6183/2021 & CM APPL. 19582/2021
ASSOTECH REALTY PRIVATE LIMITED ..... Petitioner
Through: Mr.Amol Sinha & Mr.Ashvini
Kumar, Advs.
versus
NATIONAL E-ASSESSMENT CENTRE DELHI & ANR.
..... Respondents
Through: Mr.Kunal Sharma, Sr. SC with
Ms.Zehra Khan, Jr. SC and
Mr.Shubhendu Bhattacharyya, Adv
% Date of Decision: 21st February, 2022
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MR. JUSTICE NAVING CHAWLA
JUDGMENT
MANMOHAN, J (Or al):
1. Present writ petition has been filed challenging the impugned
assessment order dated 22nd April, 2021 passed under Section 143(3) read
with Section 144B of the Income Tax Act, 1961 for the assessment year
2018-19.
2. Learned counsel for the Petitioner states that the impugned
assessment order has been passed without considering the reply furnished by
the Petitioner on 09th March, 2021 and without affording an opportunity of
`Personal Hearing' through virtual mode to the Petitioner, even though the
Petitioner had requested for a virtual hearing in its reply dated 09th March,
Signature Not Verified
By:KRISHNA BHOJ
Signing Date:23.02.2022
21:24:42
2021. He states that the impugned order is in gross violation of the faceless
scheme enshrined in Section 144B of the Act as well as the principles of
natural justice, rendering the assessment to be non-est in terms of section
144B (9) of the Act.
3. He states that Respondent No.1 without granting an opportunity of
personal hearing contrary to the provisions of section 144B(7)(vii) of the
Act chose to pass the impugned assessment order dated 22nd April, 2021
under Sections 143(3) and 144B of the Act by making an addition of Rs.
4,95,52,897/- against the returned income of Rs. 6,82,06,650/- resulting into
total assessed income of Rs. 11,77,59,547/- and the consequential notice of
demand, and the Respondents further issued a notice for initiating penalty
proceedings.
4. Learned counsel for the respondents states that as the petitioner had
been given an opportunity to file a reply as well as documents, there was no
need to give a personal hearing.
5. Having heard learned counsel for the parties, this Court is of the view
that the issue involved in the present writ petition is no longer res integra.
This Court in the case of Bharat Aluminium Company Ltd. vs. Union of
India & Ors., W.P.(C) No.14528/2021 dated 14th January, 2022, has held
that the use of the expression "may" in Section 144B(7)(viii) is not decisive.
Where a discretion is conferred upon a quasi judicial authority whose
decision has civil consequences, the word "may" which denotes discretion
should be construed to mean a command. Consequently, the requirement of
giving an assessee a reasonable opportunity of personal hearing is
mandatory. It was further held that the classification made by the
Respondent between the matters involving disputed questions of fact and
Signature Not Verified
By:KRISHNA BHOJ
Signing Date:23.02.2022
21:24:42
law by way of the Circular dated 23rd November, 2020 is not legally
sustainable.
6. Accordingly, the impugned assessment order dated 22nd April, 2021
passed under Sections 143(3) and 144B of the Income Tax Act, 1961 as well
as notices for demand and penalty for the assessment year 2018-19 are
quashed and the matter is remanded back to the Respondent No. 2 for a fresh
decision after giving an opportunity of hearing, in accordance with law.
7. With the aforesaid directions, the present writ petition and application
stand disposed of. The rights and contentions of all the parties are left open.
MANMOHAN, J
NAVIN CHAWLA, J
FEBRUARY 21, 2022/rv
Signature Not Verified
By:KRISHNA BHOJ
Signing Date:23.02.2022
21:24:42
