Delhi High Court
Romano Buildtech Pvt Ltd vs Union Of India & Anr. on 24 January, 2022
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 14243/2021 & C.M.No.44912/2021
ROMANO BUILDTECH PVT LTD ..... Petitioner
Through Mr.Gautam Jain with Mr.Mayank
Jain, Mr. Parmatma Singh, Mr.
Madhur Jain and Mr.Piyush Kumar
Kamal, Advocates.
versus
UNION OF INDIA & ANR. ..... Respondents
Through Mr.Aditya Deshwal, Advocate for
R-1.
Mr.Sunil Aggarwal, standing counsel
for the Revenue.
% Date of Decision: 24th January, 2022
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MR. JUSTICE NAVIN CHAWLA
JUDGMENT
MANMOHAN, J (ORAL)
1. The matter has been heard by way of video conferencing.
2. Present writ petition has been filed challenging the assessment order
dated 09th November 2021, the demand notice dated 30th September 2021
and the penalty proceedings under Sections 270A and 271AAC of the
Income Tax Act, 1961 (hereinafter referred to as the 'Act') for Assessment
Year 2018-19.
3. Learned counsel for the Petitioner states that the impugned orders are
in direct contravention of the order dated 12th May, 2021 passed by this
Signature Not Verified
Digitally Signed
By:KRISHNA BHOJ
16:51:35
Court in WP(C) No.4988/2021, wherein while setting aside the earlier
assessment order dated 12th April, 2021 for the Assessment Year 2018-19, it
was directed that the concerned Assessing Officer will grant a personal
hearing to the authorized representative of the Petitioner through video
conferencing, which was blatantly disregarded by the Respondents.
4. He states that the request for personal hearing was rejected on
arbitrary grounds showing complete non-application of mind. He states that
it was wrongly observed by the Respondents in the impugned assessment
order that the personal hearing was rejected as there is no legal aspect to be
heard and that the proposed additions are a matter of fact.
5. He further states that the date of notice of demand and computation of
tax which are attached to assessment order have been mentioned as 30th
September, 2021 but the speaking order has been passed on 9th November
2021, therefore, this shows that the Respondent had already made up its
mind before passing the order that the impugned addition had to be made.
6. Learned counsel for the Petitioner states that the Respondents, without
considering the replies filed by the Petitioner, rejected the request of the
Petitioner for grant of personal hearing via video conferencing and passed
the impugned Assessment order dated 09th November, 2021 under section
143(3) read with section 260 of the Act in terms of the draft assessment
order and the show cause notice dated 21st September, 2021.
7. Mr.Sunil Aggarwal, learned standing counsel for the Respondent-
Revenue states that in the present case, the request for personal hearing has
been rejected in accordance with the CBDT Circular dated 23rd November,
2020, wherein it had been stated that personal hearing would be granted only
in cases, which involved the disputed questions of fact.
Signature Not Verified
Digitally Signed
By:KRISHNA BHOJ
16:51:35
8. 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,
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
questions of law by way of the Circular dated 23rd November, 2020 is not
legally sustainable.
9. Consequently, the impugned assessment order dated 09th November
2021, the demand notice dated 30th September 2021 and the penalty
proceedings under Sections 270A and 271AAC of the Act for the
assessment year 2018-19 are quashed and the matter is remanded back to
Respondent No.2 for a fresh decision, in accordance with law.
10. In view of the above, 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
JANUARY 24, 2022/KA
Signature Not Verified
Digitally Signed
By:KRISHNA BHOJ
16:51:35
