Mat/1930/2022 Of Green Valley Industries Limited v. Assessment Unit, Income Tax Department And Others

Item No.4. IN THE HIGH COURT OF JUDICATURE AT CALCUTTACIVIL APPELLATE JURISDICTIONAPPELLATE SIDE HEARD ON: 21.12.2022 DELIVERED ON:21.12.2022 CORAM: THE HON’BLE MR. JUSTICE T. S. SIVAGNANAM AND THE HON’BLE MR. JUSTICE HIRANMAY BHATTACHARYYA M.A.T No.1930 of 2022withI.A. No.CAN 1 of 2022 Green Valliey Industries Limited.Vs. Assessment Unit, Income Tax Department & Ors. Appearance:-Mr. Abhratosh Majumdar, Sr. Adv.,Mr. Avra Mazumder, Mr. Ramesh Kumar Patodia, Ms. Megha Agarwal, Mr. Binayak Gupta, Ms. Kausheyo Roy … for the appellant. Ms. Smita Das Dey …. for the respondents. JUDGMENT (Judgment of the Court was delivered by T.S. SIVAGNANAM, J.) 1.This intra-Court appeal filed by the writ petitioner isdirected against the order dated 22[nd] November, 2022 in W.P.A. 23327 of 2022. The said writ petition was filed challenging anassessment order dated 28[th] September, 2022 under Section 143(3)read with Section 144B of the Income Tax Act, 1961 (“the Act”for brevity). The learned Single Bench dismissed the writpetition on the ground that the appellant should avail theappellate remedy under the provisions of the Act. Aggrieved bysuch order, the appellant is before us by way of this appeal. 2.We have heard Abhratosh Mazumder, learned senior counselappearing for the appellant duly assisted by Mr. Avra Mazumder,learned Advocate and Ms. Smita Das De, learned senior standingcounsel for the respondents.3.After elaborately hearing the learned senior counselappearing for the appellant and the learned senior standingcounsel for the respondents / department, we find that theassessment had been completed by the officer with utmost hastewithout affording a reasonable opportunity for the appellant toput forth its contentions especially when the allegation was oneof “mismatch”. The undisputed facts are that show cause noticewas issued on 14[th] September, 2022 at 6.31 p.m. communicated tothe appellant / assessee via email. The show cause notice is anelaborate show cause notice running to more than 18 pages. Inthe penultimate page, it has been stated that the appellant / assessee has to give his response through online mode by 17.29hours on 19[th] September, 2022. At first blush, it appears thatthe appellant / assessee has five days time to respond buthowever, when we look at the calendar, we find that the timegranted was only two days, as we have to exclude 14[th] September,2022, the date of issuance of show cause notice and 17[th]September, 2022 and 18[th] September, 2022 have to be excluded asthey are being Saturday and Sunday and especially on 17[th]September, 2022, it was an auspicious day where pujas were beingcelebrated through the State of West Bengal. 4.This would be sufficient for us to set aside the assessmentorder on the ground of undue haste and failure to give adequateopportunity to the appellant to put forth its submission.Nevertheless, the assessee had submitted an interim reply on 19[th]September, 2022 specifically pointing out that the case isvoluminous in nature, it requires sufficient time and the timegranted was insufficient and it would be very difficult for itto submit an effective reply. Further, the assessee had made aspecific request to provide the data of GSTR-1 pertaining tovarious parties as it was not privy to the date based on whichthe show cause notice was issued calculating the difference ofRs.58,74,43,529/-. 5.Though such a plea was raised, the assessing officer didnot extend time but proceeded to pass the impugned assessmentorder. 6.On a perusal of the assessment order, it is seen that theinterim reply given by the appellant / assessee has beenverbatim extracted in the order and the assessing officer statesthat the reply of the assessee is not found acceptable. Inparagraph 4.5.3 of the assessment order, the assessing officersays that the show cause notice was served on 14[th] September,2022 and five days were given to the assessee to submit itsreply. 7.As pointed out earlier, the assessee had not been given 5days time and effectively, they had only 48 hours to submit itsreply. With regard to the details regarding the GSTR-1 returnsof the other parties is concerned, the assessing officer wouldstate that the portal was kept open. However, there was nothingon record to indicate that the assessee was put on notice thatthe portal was kept open and it could do verification so as toreconcile any discrepancy. Thus, we are fully satisfied thatthere is total violation of principles of natural justice, whichwould be a good ground to interfere with the assessment orderdespite an appellate remedy existing over such an order. 8.In the result, the appeal is allowed and the order passedin the writ petition is set aside. Consequently, the assessmentorder dated 28[th] September, 2022 is set aside and the matter isremanded back to the assessing officer for fresh consideration.9.The assessing officer shall provide the necessary documentssought for by the assessee in its interim reply dated 19[th]September, 2022 and grant sufficient time to enable the assesseeto reconcile the alleged differences after affording reasonabletime to submit a final reply to the show cause notice. The caseshall be adjudicated and a speaking order be passed on meritsand in accordance with law. 10.There shall be no order as to costs. 11. Urgent photostat certified copy of this order, if appliedfor, be furnished to the parties expeditiously upon complianceof all legal formalities. (T.S. SIVAGNANAM, J) I agree, (HIRANMAY BHATTACHARYYA, J.) NAREN/PALLAB(AR.C)