Wp/19552/2021 Of M/S.arun Excello Foundations v. Additional / Joint / Deputy / Assistant Commissioner Of Income Tax

IN THE HIGH COURT OF JUDICATURE AT MADRAS CORAM M/s.Arun Excello Foundations,Represented by its Partner,Mr.P.Suresh,No.18, Bhattad Towers,West Cott Road, Royapettah,Chennai – 600 014. ...Petitioner The Additional/Joint/Deputy/Assistant Commissioner of Income Tax/Income Tax Officer,National Faceless Assessment Centre,Delhi. ..Respondent Prayer: Writ Petition filed under Article 226 of theConstitution of India to issue a Writ of CertiorarifiedMandamus, to call for the records on the file of therespondent and quash the impugned order in ITBA/AST/S/143(3)/2021-22/1034851011(1) dated 13.08.2021 passed by therespondent as illegal and consequently direct the respondentto pass a fresh assessment order after granting thepetitioner, sufficient opportunity of being heard throughVideo Conferencing in accordance with law. The petitioner has challenged the impugned Assessmentorder dated 13.08.2021 for the Assessment Year 2018-19. Thepetitioner was earlier issued with notice under Section 142(1)of the Income Tax Act on 10.12.2020 followed by another noticedated 23.01.2021 to which the petitioner complied and partlycomplied. After the above compliances, the petitioner washttps://hcservices.ecourts.gov.in/hcservices/issued with a show cause notice dated 25.03.2021 wherein a proposal was made to addition of estimated profits inrespectof two projects of the petitioner namely ''Triveni'' and''Olive Tides'' as detailed below: and under Section 68 of the Income Tax. the petitionerappears to have responded to the same and requested therespondent to permit the petitioner to appear through VideoConferencing. 2.Subsequently, the second show cause notice dated19.06.2021 was issued to the petitioner herein the demandproposed inrespect of ''Triveni'' and the proposed additionunder Section 68 was dropped. By the said notice, thepetitioner was asked to respond by filing reply on or before23.06.2021. The case was suo motto to 25.07.2021, thepetitioner appears to have sent a representation and requestedthe respondent to permit the petitioner to participate in thepersonal hearing through Video Conferencing. 3.The learned counsel for the petitioner submits thatthough the petitioner requested the respondent to permit thepetitioner to participate through Video Conferencing, thefacility of Video Conferencing was not extended to thepetitioner and thus the impugned order has been passed. It istherefore submitted that the impugned order has been passed inviolation of principles of natural justice and is liable to bequashed. 4.Opposing the prayer, the learned Senior Standingcounsel for the respondent on the other hand submits that thesystem itself allows an assessee to opt for Video Conferencingby pressing the link in the notice itself and since thepetitioner did not opt by pressing the link given for a VideoConferencing, the impugned Assessment Order passed by theNational Faceless Assessment Centre in New Delhi cannot bechallenged. 5.The learned Senior Standing Counsel for the respondentfurther submits that the petitioner has an alternate remedyunder Section 246A of the Income Tax Act and therefore on thisaccount also the writ petition is liable to be dismissed asthe petitioner has an alternate remedy. 6.Heard the learned counsel for the petitioner and thehttps://hcservices.ecourts.gov.in/hcservices/learned Senior Standing Counsel for the respondent and perused the impugned order and various notices issued under Section142(1) of the Income Tax Act and show cause notice dated25.03.2021 and 19.06.2021 and the reply of the petitioner.The petitioner has been by an large complied in responding tothe notices and the show cause notice issued to thepetitioner. 5.The learned Senior Standing Counsel for the respondentfurther submits that the petitioner has an alternate remedyunder Section 246A of the Income Tax Act and therefore on thisaccount also the writ petition is liable to be dismissed asthe petitioner has an alternate remedy. 6.Heard the learned counsel for the petitioner and thehttps://hcservices.ecourts.gov.in/hcservices/learned Senior Standing Counsel for the respondent and perused the impugned order and various notices issued under Section142(1) of the Income Tax Act and show cause notice dated25.03.2021 and 19.06.2021 and the reply of the petitioner.The petitioner has been by an large complied in responding tothe notices and the show cause notice issued to thepetitioner. 7.The impugned order has been passed without affording anopportunity of the petitioner to be heard through VideoConferencing. The petitioner's request has not beenconsidered, despite a specific request of the petitioner.Though the Assessment is now through National FacelessAssessment Centre and system enabled and the distribution ofwork is through portal, nevertheless, the system has tooperate in such a way to allow assessee to participate in theproceedings through Video Conferencing if they desire. It isnot sufficient for the respondent to state that the petitionerhas not pressed the link for Video Conferencing in the noticeissued. 8.Considering the fact that the order has been passedwithout giving an opportunity for personal hearing throughVideo Conferencing to the petitioner, I am inclined to quashthe impugned order and remit the case back to the respondentto pass a speaking order on merits and in accordance with lawwithin a period of sixty days from the date of receipt of acopy of this order. The respondent is directed to issueappropriate instructions to the Administrator of the NationalFaceless Assessment Centre to enable the petitioner toparticipate in a personal hearing through Video Conferencing. 9.Accordingly, this writ petition stands allowed with theabove observations. No costs. Consequently, connectedmiscellaneous petitions are closed. Sd/- Assistant Registrar(CS) //True Copy// Sub Assistant Registrar jasTo The Additional/Joint/Deputy/Assistant Commissioner of Income Tax/Income Tax Officer,National Faceless Assessment Centre,Delhi. +1 cc to Mrs.Hema Muralikrishnan, Advocate Sr.NO. 6608W.P.No.19552 of 2021&W.M.P.Nos.20833 & 20836 of 2021