Start Of Picture Text -----<Br> v. Additional/Joint/Deputy/Assistant Commissioner Of Income Tax/Income Tax Officer

IN THE HIGH COURT OF GUJARAT AT AHMEDABADR/SPECIAL CIVIL APPLICATION NO. 13012 of 2021 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE J.B.PARDIWALA andHONOURABLE MS. JUSTICE NISHA M. THAKORE ==========================================================1Whether Reporters of Local Papers may be allowedto see the judgment ?2To be referred to the Reporter or not ?3Whether their Lordships wish to see the fair copyof the judgment ?4Whether this case involves a substantial questionof law as to the interpretation of the Constitutionof India or any order made thereunder ? ==========================================================SYMPHONY LIMITED VersusADDITIONAL/JOINT/DEPUTY/ASSISTANT COMMISSIONER OF INCOMETAX/INCOME TAX OFFICER ==========================================================Appearance:MR B S SOPARKAR(6851) for the Petitioner(s) No. 1 for the Respondent(s) No. 1MR MR BHATT WITH MR KARAN SANGHANI FOR M R BHATT & CO.(5953) for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA and HONOURABLE MS. JUSTICE NISHA M. THAKORE Date : 28/03/2022 ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1.By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs: “(a)quash and set aside the impugned order at ‘AnnexureA’ to this petition;A’ to this petition; (b)pending the admission, hearing and final disposal ofthis Petition, to stay the implementation and operationof the order at ‘Annexure A’ to this petition, notice ofpenalty at ‘Annexure F’ to this petition and stayrecovery of tax for A.Y. 2018-19;this Petition, to stay the implementation and operationof the order at ‘Annexure A’ to this petition, notice ofpenalty at ‘Annexure F’ to this petition and stayrecovery of tax for A.Y. 2018-19; (c)any other and further relief deemed fit and proper begranted in the interest of justice;granted in the interest of justice; (d)to provide for the cost of this petition.” 2.We have heard Mr. Bandish Soparkar, the learned counselappearing for the writ applicant – assessee and Mr. M.R. Bhatt, thelearned senior counsel assisted by Mr. Karan Sanghani, thelearned counsel appearing for the Revenue. 3.It appears from the materials on record that the writ applicantherein filed its return of income for the A.Y. 2018-19 on 28.11.2018at Rs.197,12,28,420/-. Later the return was revised on 30.03.2019at Rs.197,12,28,420/-. The case of the writ applicant was selectedfor scrutiny under the CASS to verify few issues. 4.A notice under Section 143(2) was issued to the writapplicant on 22.09.2019 and thereafter, notices under Section142(1) were issued from time to time. Those were replied by thewrit applicant accordingly. 5.In the meantime, with the introduction of FacelessAssessment Scheme, a fresh notice under Section 142(1) wasissued on 03.12.2020 and the same was replied by the writ applicant accordingly. Thereafter, a notice was issued on27.01.2021 and the same was replied on 08.02.2021. Thereafter, a“show-cause-before-assessment” was issued on 17.04.2021. Thereply was filed by the writ applicant on 28.05.2021. 6.It appears that the writ applicant received a communicationdated 30.05.2021 by which the respondent granted adjournmentas prayed for by the writ applicant. Time was granted till07.06.2021. Again vide letter dated 11.06.2021, further time wasgranted till 16.06.2021. The writ applicant vide the letters dated30.05.2021 and 01.07.2021 respectively brought to the notice ofthe respondent that it had already submitted its response againstthe notice dated 17.04.2021. 7.The writ applicant received the impugned assessment orderdated 30.07.2021. The writ applicant also received a notice ofpenalty under Section 274 read with Section 270A of the Act dated30.07.2021. 6.It appears that the writ applicant received a communicationdated 30.05.2021 by which the respondent granted adjournmentas prayed for by the writ applicant. Time was granted till07.06.2021. Again vide letter dated 11.06.2021, further time wasgranted till 16.06.2021. The writ applicant vide the letters dated30.05.2021 and 01.07.2021 respectively brought to the notice ofthe respondent that it had already submitted its response againstthe notice dated 17.04.2021. 7.The writ applicant received the impugned assessment orderdated 30.07.2021. The writ applicant also received a notice ofpenalty under Section 274 read with Section 270A of the Act dated30.07.2021. 8.In such circumstances referred to above, the writ applicant ishere before this Court with the present writ application. 9.The principal argument of Mr. Soparkar is that the impugnedassessment order came to be passed without taking intoconsideration the reply filed by the writ applicant and also withoutaffording any opportunity of video conferencing. Mr. Soparkarwould submit that the impugned order passed under Section143(3) read with Section 144B of the Act could be said to bepassed in violation of the principles of natural justice. 10.Mr. M.R. Bhatt, the learned senior counsel appearing for the Revenue would submit that the averments made in thememorandum of the writ application on facts are unassailable. 11.It is by now well settled that the issuance of a show causenotice along with the draft assessment order is sine qua nonbefore passing an order under Section 144B of the Act.Undisputedly, in the case on hand, no show cause notice came tobe issued along with draft assessment order and in suchcircumstances, the final order of assessment could be said to bewithout jurisdiction. We are of the view that the matter should beremitted to the Assessing Officer for de novo proceedings. 12.In the result, this writ application succeeds and is herebyallowed. The impugned assessment order dated 30.07.2021 forthe A.Y. 2018-19 is hereby quashed and set aside. The matter isremitted to the Assessing Officer. The Assessing Officer shallissue a show cause notice with the draft assessment order so thatthe writ applicant can respond to the same by an appropriate reply. Let this entire exercise be undertaken at the earliest and afresh assessment order be passed after giving due opportunity ofhearing to the writ applicant. With the aforesaid directions, this writ application standsdisposed of. Direct service is permitted. (J. B. PARDIWALA, J) (NISHA M. THAKORE,J)