Vikash Vehicles Pvt. Ltd. Co. ... vs National Faceless Assessment ...
2022 Latest Caselaw 16998 MP

                                 1
 IN    THE       HIGH COURT OF MADHYA PRADESH
                       AT GWALIOR
                         BEFORE
            HON'BLE SHRI JUSTICE ROHIT ARYA
                            &
       HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
                  ON THE 21 st OF DECEMBER, 2022
                  WRIT PETITION No. 13169 of 2021

BETWEEN:-
VIKASH VEHICLES PVT. LTD. CO. RETISTERED UNDER
THE COMPANIES ACT (HAVING REGISTERED OFFCIE
AT RAJGARH CHAURAHA NARSINGH TILA DATIA
DISTT. DATIA) THR. DIRECTOR VIKASH GUPTA S/O LT
MURARILAL GUPTA, AGED ABOUT 32 YEARS,
OCCUPATION: BUSINESS NEAR PEETAMBRA PEETH
DATIA DATIA, (MADHYA PRADESH)

                                                             .....PETITIONER
(BY SHRI N.K.GUPTA SR.ADVOCATE WITH SHRI S.D.SINGH ADVOCATE)

AND
1.    NATIONAL FACELESS ASSESSMENT CENTER
      DELHI (EARLIER NATIONAL E ASSESSMENT
      CENTER DELHI ) THR. COMPETENT AUTHORITY
      DELHI (DELHI)

2.    OFFICE OF ASSISTANT COMMISSIONER OF
      INCOME TAX THR. ASSISTANT COMMISSIONER
      OF   INCOME    TAX INCOME TAX OFFICER
      NATIONAL E ASSESSMENT CENTER DELHI
      (DELHI) THROUGH ASSISTANT COMMISSIONER
      OF INCOME TAX.

                                                          .....RESPONDENTS
(BY SHRI DPS BHADORIA - ADVOCATE)

      T h is petition coming on for hearing this day, JUSTICE ROHIT
ARYA passed the following:
                                  ORDER

The petitioner, an assessee is before this Court taking exception to the

impugned assessment order Annexure P/1 of the year 2018-19.

Shri N.K.Gupta, learned Sr.Advocate submits that the impugned assessment order suffers from number of procedural irregularities to the grave prejudice of the assessee. It is submitted that the petitioner filed common reply on 27.03.2021 to the notices issued on 06.02.2020 and 30.12.2020 and thereafter reply was submitted on 11.04.2021 of notices issued on 30.03.2021 and 05.04.2021. However, the replies submitted have not been considered.

The petitioner was never served with the draft assessment order, though it is mentioned in the notices dated 30.3.2021 and 5.4.2021. Under such circumstances, the petitioner was deprived to furnish comments on draft

assessment order. As a result, the petitioner has been subjected to best judgment assessment under Section 144 of Income Tax Act without taking into consideration the reply submitted by him. Therefore, the impugned assessment order deserves to be quashed.

Per contra, Shri Bhadoria, learned Standing Counsel for Income Tax submits that the assessment of the Assessment Year 2018-19 under Section 142/143 of Income Tax Act was started with notice to the petitioner on 28.09.2019 but there was no reply within the time stipulated thereunder. Therefore, on 6.02.2020, again a notice was issued but no reply was filed. To afford opportunity, further notice on 30.11.2020 was issued under Section 142 (1) of Income Tax Act for completion of the regular assessment under Section 143 of Income Tax Act but still no reply was filed. Reply was filed as late as on 27.7.2021. After taking into consideration the reply, the petitioner was served with a notice on 30.03.2021. Thereafter, as petitioner has not cooperated in regular assessment, a notice dated 01.02.2021 was served upon him as to why, the best judgment assessment is not passed under Section 144 of Income Tax

Act. There was no reply to the said notice within the time stipulated thereunder. However, again to afford an opportunity in that behalf, on 30.3.2021, a show cause notice/draft assessment order was uploaded on petitioner's Website for reply within the time stipulated thereunder but again, there was no reply within the time stipulated. Again notice was issued on 05.04.2021 and thereafter on 11.04.2021, reply was filed.

Therefore, sequence of facts as enumerated above, suggests that the petitioner despite service of notice, has not been careful in filing reply within the time stipulated thereunder. No plausible explanations were offered to the questionnaires served with the initial notices. Under such circumstances, power under Section 144 of Income Tax Act has been exercised and draft assessment order was prepared on the basis of the material available. A copy thereof was also served upon the petitioner but again, there was no reply, therefore, no fault can be found in the impugned assessment order passed under Section 144 of Income Tax Act. In any case, the petitioner has a liberty to file statutory appeal as provided under Section 246A of Income Tax Act before CIT (Appeals).

In rejoinder, Shri Gupta submits that there is specific denial of the fact that the petitioner was ever served with the draft assessment order. He fairly submits that though notice was sent on 30.03.2021 but since draft assessment order was not available, therefore, it was not possible for the petitioner to file

reply to the Draft Best Assessment Order. This fact is specifically reiterated in the reply submitted on 11.04.2021. Hence, in all fairness, the petitioner should have been afforded an opportunity to comment upon the draft assessment order before AO who had resorted to Section 144 of Income Tax Act and passed the impugned assessment order under Section 144 of Income Tax Act.

Upon hearing counsel for the parties, we are of the considered view that the petitioner can avail the remedy of appeal before CIT (Appeals). The petitioner shall be at liberty to seek adjudication of procedural and factual disputes as evident from submissions advanced by both the parties and may also assail the assessment order on facts.

Therefore, in the fitness of things, we extend liberty to the petitioner to file an appeal within fifteen days before CIT (Appeals) Under Section 246A of Income Tax Act against the impugned assessment order wherein, all grounds on facts and in law available to the petitioner, may be raised. The CIT (Appeals) shall not insist upon the question of limitation and address the issues raised on merits. The petitioner shall also be at liberty to file application seeking protection against coercive action pursuant to the impugned assessment order.

Till decision on this application, no coercive measure shall be taken against the petitioner, provided that the appeal is filed on or before 15th day from the date of order.

It is made clear that we have not expressed any opinion on the merits of the case.

With the aforesaid, the petition stands disposed of.

  (ROHIT ARYA)                                             (MILIND RAMESH PHADKE)
     JUDGE                                                          JUDGE
Rks

      RAM KUMAR
      SHARMA
      2022.12.21
      18:24:35 +05'30'