Wp/2076/2022 Of Lkp Securities Ltd v. The Dy. Commissioner Of Income Tax Circle 4 (3) (1) And 3 Others

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTIONWRIT PETITION NO. 2077 OF 2022WITHWRIT PETITION NO. 2076 OF 2022LKP Securities Ltd. 203, Embassy Centre,Nariman Point, Mumbai-400 021....Petitioner V/s.1.The Deputy Commissioner of Income TaxCircle-4(3) (1), Room No. 649,6[th] Floor, Aayakar Bhavan, M. K. Road,Mumbai-400 020.2. The Joint Commissioner of Income TaxRange-4(3), Room No 635,6[th] Floor, Aayakar Bhavan, M. K. Road,Mumbai-400 020.3. Additional/Joint/Deputy/Assistant/Commissioner of Income-tax/Income TaxOfficer National Faceless Assessment Centre,Income Tax Department, Delhi4. Union of India2[nd] Floor, Aayakar Bhavan Annexe,New Marine Lines, Mumbai-400 020....RespondentsMs. Dinkle H. Hariya with Ms. Rashmi Vyas i/b Ms. Namrata S.Kasale, Advocates for Petitioner.Mr. Suresh Kumar, Advocate for Respondents.-------CORAM :DHIRAJ SINGH THAKUR &ABHAY AHUJA, JJ.DATE :4[th] July, 2022 P.C.: 1. Writ Petition No. 2077 of 2022 for Assessment Year 2016- 2017 filed under Article 226 of Constitution of India, seeking the following reliefs:- “(a) that this Hon’ble Court may be pleased to issue underArticle 226 of the Constitution of India a appropriatedirection, order or a writ, including a writ in the nature of‘Certiorari’, calling for the records of the case and aftersatisfying itself as to the legality thereof quash and setaside the notice dated 31.03.2021 issued by the FirstRespondent under section 148 of the Income tax Act,1961, being Ex.- ‘C’ hereto; (b) that this Hon’ble Court may be please to issue underArticle 226 of the Constitution of India an appropriatedirection, order or a writ, including a writ in the nature of‘Certiorairi’, calling for the records of the case and aftersatisfying itself as to the legality thereof quash and setaside the communication dated 16.12.2021 / 21.12.2021,Ex. - ‘G’ herein, issued by the First Respondent,purportedly dealing with the objections raised by thePetitioner; and the reassessment order, the notice ofdemand and the penalty notice dated 30.03.2022, Ex. - ‘U’herein, passed by the Third Respondent as withoutjurisdiction. (c) that this Hon’ble Court may be pleased to issue underArticle 226 of the Constitution of India an appropriatedirection, order or a writ, including a writ in the nature of‘Mandamus’, directing the First Respondent to withdrawand cancel the impugned notice dated 31.03.2021 (beingEx.- ‘C’ hereto) and the impugned order disposing of theobjections dated 16.12.2021 / 21.12.2021 (being Ex. - ‘G’hereto); and impugned reassessment order, the notice ofdemand and the penalty notice dated 30.03.2022 (beingEx. - ‘U’ hereto); (d) that his Hon’ble Court may be pleased to issue underArticle 226 of the Constitution of India an appropriatedirection, order or a writ, including a writ in the nature of WP 2077-22 @ WP 2076-22.odt ‘Prohibition’, directing the Respondents not to take anyaction in furtherance to the impugned notice andimpugned order disposing of the objection and infurtherance to impugned reassessment order, includingpenalty action, and restraining the Respondent fromproceeding further in any manner, including recoveryproceeding, arising from the impugned reassessmentorder passed for A.Y. 2016-2017 against the Petitioner;” (d) that his Hon’ble Court may be pleased to issue underArticle 226 of the Constitution of India an appropriatedirection, order or a writ, including a writ in the nature of WP 2077-22 @ WP 2076-22.odt ‘Prohibition’, directing the Respondents not to take anyaction in furtherance to the impugned notice andimpugned order disposing of the objection and infurtherance to impugned reassessment order, includingpenalty action, and restraining the Respondent fromproceeding further in any manner, including recoveryproceeding, arising from the impugned reassessmentorder passed for A.Y. 2016-2017 against the Petitioner;” 2.Ms. Hariya, learned counsel for the Petitioner submits that on23[rd] March, 2022, Petitioner sought to make further submissionsand also submitted a request for personal hearing through videoconferencing. It was found that e-proceedings had been closed on21[st] March, 2022. The Petitioner informed the Respondent of thisgrievance vide communication dated 24[th] March, 2022 and alsoattached further submission dated 23[rd] March, 2022 with the saidcommunication. Petitioner is aggrieved that despite the sameRespondent No.3 has gone ahead and passed the assessment orderdated 30[th] March, 2022 without considering the request forpersonal hearing or the further submissions. She submits that thematter be remanded back so that an assessment order can bepassed after considering the further submissions and after hearingthe Petitioner. Learned counsel further submits that since the factsin Writ Petition No. 2076 of 2022 for the A.Y. 2017-2018 and thereliefs sought therein are similar to the facts and reliefs sought in WP 2077-22 @ WP 2076-22.odt Writ Petition No. 2077 of 2022 for A.Y. 2016-2017, similar ordersbe passed in both the Petitions. 3.We observe from paragraph 11 of the assessment order dated30[th] March, 2022 for A. Y. 2016-2017 that since the case wasgetting time barred the assessment order came to be passed on thebasis of material available with the department. Paragraph 11 ofthe said order is self-explanatory and is quoted as under:- “11. Subsequently, the assessee opted for video conferencethrough JAO, regarding which letter was uploaded by theJAO on 25.03.2022. In response, the VC was scheduled on28.03.2022 at 2.30 p.m. However, during the VCconducted for the A.Y. 2017-18 scheduled at 12.45 p.m. inassessee’s own case, the A/R of the assessee requested totake up the case for the A. Y. 2016-17 alongwith AY 2017-18 since the issue for both the years are similar and assuch VC scheduled for 2016-17 was cancelled. In thecourse of Video conference, the A/r of the assesseerequested to stay the proceeding for AY 2016-17 as theywould be filing writ before the Hon’ble High Court. Inresponse, the A/R of the assessee was asked to upload theinterim order of the Hon’ble High Court on or before29.03.2022 to stay the proceedings. However, the A/R ofthe assessee requested they would upload the interimorder by 3.00 p.m. on 30.03.2022 but no such order wasfiled till 4.00 P.M. of 30.03.2022. Since the case is gettingbarred by limitation, the case is disposed off on the basis ofmaterial available with the department.” As can be seen the assessment order has come to be passed without considering the further submissions or hearing the Petitioner. We observe that similar assessment order has also beenpassed for A. Y. 2017-2018. 4.Mr. Suresh Kumar, learned counsel for the Revenue fairlysubmits that in several such matters, this Court has remanded thematters for fresh consideration in view of the provisions of Section144B of the Income Tax Act, 1961. As can be seen the assessment order has come to be passed without considering the further submissions or hearing the Petitioner. We observe that similar assessment order has also beenpassed for A. Y. 2017-2018. 4.Mr. Suresh Kumar, learned counsel for the Revenue fairlysubmits that in several such matters, this Court has remanded thematters for fresh consideration in view of the provisions of Section144B of the Income Tax Act, 1961. 5.Having heard learned counsel and after having considered thematerial on record, we deem it appropriate to set aside theassessment orders dated 30[th] March, 2022 for A. Ys. 2016-2017and 2017-2018 and remand the matters back to the Respondent No.3 for denovo consideration after granting an opportunity ofpersonal hearing and after taking into account the furthersubmissions that the Petitioner may make, pass appropriate ordersin accordance with law, within a period of four weeks. 6.The Writ Petitions are disposed of in the above terms. Nocosts. Digitallysigned byNIKITANIKITAYOGESHYOGESHGADGILGADGILDate:2022.07.0617:10:18+0530(ABHAY AHUJA, J.) (DHIRAJ SINGH THAKUR J.)