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
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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
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Approved for Reporting Yes No
No
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LATE JUNEDBHAI ABDULGANI MEMON (PARVINBANU JUNEDBHAI
MEMON, LEGAL HEIR)
Versus
THE NATIONAL E-ASSESSMENT CENTRE & ORS.
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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
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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
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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.
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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
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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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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
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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
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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
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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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"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
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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,
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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
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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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(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
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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
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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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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).
calendar days from notice response
due date and a date within 7 days
prior to "Proceeding Limitation
Date".
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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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
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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
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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
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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
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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
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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).
calendar days from notice response
due date and a date within 7 days
prior to "Proceeding Limitation
Date".
calendar days from the system date
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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
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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
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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
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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
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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
