Wp/1378/2021 Of Multiplier Brand Solutions Pvt Ltd v. Additional Joint Deputy Assistant Commissioner Of Income Tax Officer And 4 Ors

Digitally1/2signed byMEERAMEERAMAHESHMAHESHJADHAVJADHAVDate:2021.10.28 IN THE HIGH COURT OF JUDICATURE AT BOMBAYsigned byMEERAMEERAMAHESHMAHESHJADHAVJADHAVDate:2021.10.28 IN THE HIGH COURT OF JUDICATURE AT BOMBAY12:01:37+0530ORDINARY ORIGINAL CIVIL JURISDICTIONWRIT PETITION NO. 1378 OF 2021WRIT PETITION NO. 1378 OF 2021 Multiplier Brand Solutions Pvt Ltd. ….Petitioner V/s.Additional Joint Deputy AssistantCommissioner of Income Tax Officer & Ors, …Respondents ---- Mr. Ajay Singh i/b Mr. Sameer Dalal for PetitionerMr. Arvind Pinto for Respondents – Revenue ---- CORAM : K.R. SHRIRAM &AMIT B. BORKAR, JJ DATED : 25[th] OCTOBER 2021 AMIT B. BORKAR, JJ P.C. : 1Petitioner is impugning the assessment order dated 13[th] May 2021 onthe ground that respondents have not issued the mandatory draftassessment order as required under Section 144B(1)(xvi)(b) of the IncomeTax Act, 1961 (the said Act). 2In the affidavit in reply filed by one Jayshree Thakur affirmed on 2[nd]August 2021, respondents admit that no draft assessment order has beenissued but according to respondents the assessment unit has reported thatsince the Risk Unit did not indicate that a show cause notice or draft orderbe issued, the assessment was finalized and sent to petitioner. According toaffiant, Section 144B(1)(xvi)(b) is not mandatory and the question of draftassessment order falls within the purview of the Risk Unit. 3This court has in many orders held that provisions of Section 144B aremandatory. Under Section 144B(1)(xvi)(b), if there is going to be avariation prejudicial to the assessee, a draft assessment order has to be issued. Admittedly it has not been issued. It has also been held by this court that non compliance with theprocedure laid down under Section 144B of the Act would make theassessment order non est in view of the provisions of sub Section 9 ofSection 144B of the Act. 4Since admittedly, there has been non compliance with the mandatoryprocedure laid down under Section 144B, the assessment order dated 13[th]May 2021 is also non est. The order impugned is hereby quashed and setaside.Consequent demand notice and penalty notice both dated 13[th] May2021 are also quashed and set aside. 5Revenue may take such further steps as advised in accordance withlaw. We also clarify that we have not made any observations on merits ofthe case. 6Petition disposed. (AMIT B. BORKAR, J) (K.R. SHRIRAM, J.)