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ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 4432 OF 2022
Dev Marketing .Petitioner
Flat No. 11/12, Plot No. 10, Jeevan Jyoti Building, Tarun
Bharat Society, Chakala, Andheri(E), Mumbai – 400 099.
Vs.
1. The Assessment Unit [Additional/Joint/ .Respondents
Deputy/Assistant Commissioner of Income
Tax], National Faceless Assessment Centre, Room 401, 2nd
Floor, E Ramp, Jawaharlal
Nehru Stadium, Delhi – 110 003.
2. The Deputy Commissioner of Income Tax-26(1)
Bandra – Kurla Complex, Mumbai.
3. The Pr. Commissioner of Income Tax – 26
C-11, 6th
Floor, Bandra – Kurla Complex, Mumbai.
4. Union of India, Aaykar Bhavan, M. K. Road, Mumbai.
Mr. Mandar Limaye, Advocate, for the Petitioner
Mr. Akhileshwar Sharma a/w. Ms. Shraddha Worlikar, Advocates, for the Respondents
ORAL JUDGMENT
1. Heard learned Counsel for the parties.
2. Rule. The rule is made returnable forthwith. By consent, the Petition is taken up for final hearing.
3. The Petitioner challenges the impugned assessment Order dated 09.08.2022 on the ground that the same was made in breach of the principles of natural justice. Learned Counsel for the Petitioner pointed out that though the Petitioner had requested explicitly for a personal hearing, the same was not granted to the Petitioner in violation of the provisions of Section 143(3) r/w. 144B of the I. T. Act.
4. Mr. Shashikant Singh, the Assistant Commissioner of Income Tax, has filed an Affidavit in this matter. Paragraphs 6 to 11 of this Affidavit are relevant and are transcribed below for the convenience of reference: - “6. In the case of Petitioner, notice u/s 143(2) dated 29.06.2021 was issued. Thereafter, Notice u/s. 142(1) dated 27.10.2021, 01.12.2021, 24.12.2021 and 05.01.2022 were issued to the assessee. In response, the Petitioner submitted its response on 11.01.2022. Further notice u/s. 142(1) dated 14.01.2022 was issued, in response to which, the Petitioner has furnished reply on 14.01.2022 and 16.02.2022. The AO has issued show cause notice on 24.02.2022 to which the assessee furnished reply on 02.03.2022 wherein the Petitioner requested for a video conferencing to discuss and explain technical issues was made.
7. Thereafter, on 09.08.2022, assessment order was passed. However, a bona fide error happened in granting opportunity of hearing through the video conference as requested by the assessee and agreed by the Assessing Officer.
8. I say that proceedings under the Income – tax Act 1961 are non-adversarial and therefore, where a bona fide error happened, it is the duty of the Respondent to address that error in the interest of both the revenue and the Petitioner.
9. In view of the above, I humbly say that the error was a bona fide mistake but which was not intentional.
10. In the facts and circumstances, I humbly pray that this Hon’ble Court may be pleased to set aside the remand the matter back to the Assessing Officer, for grant an opportunity to the Assessee for personal hearing and thereafter pass appropriate orders.
11. In the circumstances, it is humbly submitted by the respondents that the Hon’ble Court may be pleased to set aside the assessment order assessment dated 09th August, 2022 passed under Section 143(3) r/w Section 144B of the Income Tax Act, 1961 and consequential notices thereto and matter be remanded back to the Assessing Officer with directions to respondents to frame the assessment afresh de-novo after giving opportunity to be heard to the Petitioner/Assessee and also after providing draft assessment order.”
5. Considering the fair approach reflected in the above Affidavit filed by Mr. Shashikant Singh and on being satisfied that this was indeed a clear case of violation of principles of natural justice, we set aside the impugned assessment Order dated 09.08.2022 and remand the matter to the assessing officer with a direction to carry out the assessment afresh after giving an opportunity of hearing to the Petitioner and also providing a draft assessment Order. This exercise must be completed within three months of uploading this order. Learned Counsel for the Petitioner agrees that no limitation issue would be raised provided the assessment is completed within three months of uploading this order.
6. All other contentions of the parties are left open. The rule is made absolute in the above terms without any costs order.
7. All concerned are to act on an authenticated copy of this order.
8. At Mr. Sharma's request, we note an error in paragraph 7 of the Affidavit since the word “not” does not appear between the words “not granting” in line 2 of paragraph 7. Since the error is obvious, we read the correction in the said paragraph. (JITENDRA JAIN, J.) (M. S. SONAK, J.)