Wpt v. National Faceless Assessment Center, Income Tax Department,Ministry Of Finance, Delhi

2025:CGHC:8464 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR ORDER RESERVED ON 19.11.2024 ORDER DELIVERED ON 18.02.2025 WPT No. 178 of 2024 1 - M/s Hidayatullah National Law University, Raipur, Having Its Office AtUparwara Village, Abhanpur Tehsil, Naya Raipur, Raipur- 493661,Chhattisgarh. Through Its Authorized Signatory, Dr. Vipan Kumar(Registrar), S/o Shri Gulshan Kumar Goyal, Aged About- 42 Years, R/oHidayatullah National Law University, Sector 40, Nava Raipur AtalNagar, Raipur, 493661, Chhattisgarh (C.G.) ... Petitioner(s) versus 1 - National Faceless Assessment Center, Income Tax Department,Ministry Of Finance, Delhi. 2 - Commissioner Of Income Tax (Appeals), Income Tax Department,Raipur, District- Raipur (C.G.) 3 - Assistant Commissioner Of Income Tax, Circle (Exemption), Raipur (C.G.) ... Respondent(s) WPT No. 179 of 2024 1 - M/s Hidayatullah National Law University, Raipur Having Its Office AtUparwara Village, Abhanpur Tehsil, Naya Raipur, District - Raipur -493661, Chhattisgarh Through Its Authorized Signatory, Dr. Vipan Kumar (Registrar), S/o Shri Gulshan Kumar Goyal, Aged About 42Years, R/o Hidayatullah National Law University, Sector 40, NavaRaipur Atal Nagar, Raipur - 493661, Chhattisgarh ---Petitioner(s) Versus 1 - National Faceless Assessment Centre Income Tax Department,Ministry Of Finance, DelhiMinistry Of Finance, Delhi 2 - Commissioner Of Income Tax (Appeals) Income Tax Department,Raipur, District Raipur Chhattisgarh 3 - Assistant Commissioner Of Income Tax Circle (Exemption), RaipurChhattisgarh --- Respondent(s) WPT No. 180 of 2024 1 - M/s Hidayatullah National Law University, Raipur Having Its Office AtUparwara Village, Abhanpur Tehsil, Naya Raipur, Raipur - 493661(C.G.) Throught Its Authorized Signatory, Dr. Vipan Kumar (Registrar),S/o. Shri Gulshan Kumar Goyal, Aged About 42 Years, R/o. HidayatullahNational Law University, Sector - 40, Nava Raipur, Atal Nagar, Raipur -493661 (C.G.) ---Petitioner(s) Versus 1 - National Faceless Assessment Centre Income Tax Department,Ministry Of Finance, Delhi 2 - Commissioner Of Income Tax (Appeals) Income Tax Department,Raipur, District - Raipur (C.G.)Raipur, District - Raipur (C.G.) 3 - Assistant Commissioner Of Income Tax Circle (Exemption), Raipur (C.G.) --- Respondent(s) WPT No. 181 of 2024 1 - M/s Hidayatullah National Law University , Raipur Having Its Office At Uparwara Village, Abhanpur Tehsil, Naya Raipur, Raipur - 493661,Chhattisgarh, Through Its Authorized Signatory, Dr. Vipan Kumar(Registrar), S/o Shri Gulshan Kumar Goyal, Aged About 42 Years,Resident Of Hidaytullah National Law University, Sector 40, NavaRaipur Atal Nagar, Raipur - 493661, Chhattisgarh (C.G.) ---Petitioner(s) Versus 1 - National Faceless Assessment Centre Income Tax Department,Ministry Of Finance, Delhi 2 - Commissioner Of Income Tax (Appeals) Income Tax Department,Raipur, District Raipur (C.G.) 3 - Assistant Commissioner Of Income Tax Circle (Exemption), Raipur (C.G.) --- Respondent(s) WPT No. 182 of 2024 1 - M/s Hidayatullah National Law University, Raipur Having Its Office AtUparwara Village, Abhanpur Tehsil, Naya Raipur, District - Raipur -493661, Chhattisgarh Through Its Authorized Signatory, Dr. VipanKumar (Registrar), S/o Shri Gulshan Kumar Goyal, Aged About 42Years, R/o Hidayatullah National Law University, Sector 40, NavaRaipur Atal Nagar, Raipur - 493661, Chhattisgarh ---Petitioner(s) Versus 1 - National Faceless Assessment Centre Income Tax Department,Ministry Of Finance, Delhi 2 - Commissioner Of Income Tax (Appeals) Income Tax Department,Raipur, District Raipur Chhattisgarh 3 - Assistant Commissioner Of Income Tax Circle (Exemption), RaipurChhattisgarh (C.G.) --- Respondent(s) WPT No. 182 of 2024 1 - M/s Hidayatullah National Law University, Raipur Having Its Office AtUparwara Village, Abhanpur Tehsil, Naya Raipur, District - Raipur -493661, Chhattisgarh Through Its Authorized Signatory, Dr. VipanKumar (Registrar), S/o Shri Gulshan Kumar Goyal, Aged About 42Years, R/o Hidayatullah National Law University, Sector 40, NavaRaipur Atal Nagar, Raipur - 493661, Chhattisgarh ---Petitioner(s) Versus 1 - National Faceless Assessment Centre Income Tax Department,Ministry Of Finance, Delhi 2 - Commissioner Of Income Tax (Appeals) Income Tax Department,Raipur, District Raipur Chhattisgarh 3 - Assistant Commissioner Of Income Tax Circle (Exemption), RaipurChhattisgarh --- Respondent(s) For Petitioner(s) :Mr. G.S.Shivadass, Sr. Advocate through VCalong with Mr. Anumesh Shrivastava Advocatealong with Mr. Anumesh Shrivastava Advocate For Respondent(s) :Mr. Ajay Kumrani, Advocate on behalf of Mr. Amit Choudhary, AdvocateAmit Choudhary, Advocate (Hon’ble Shri Justice Arvind Kumar Verma) C A V Order Since the question of law involved in the batch of petitions underArticle 226 of the Constitution of India have been heard on themaintainability of the writ petitions as well as on merits. 2.By way of the instant writ petitions, the petitioner is challengingthe order of the Respondent No.2 under Section 250 of the Income TaxAct, 1961 dated 29.12.2023 whereby the penalty proceedings initiatedagainst the petitioner pertaining to the assessment year 2015-16 weredecided in a manner prejudicial to the natural justice. 3.Facts of the case in brief is that the petitioner concerned isengaged in advancement of learning, teaching, research and diffusionof knowledge in the field of law. The income tax return filed by theassessee for the assessment year 2015-16 was reopened forassessment. That the respondent No.2 denied exemption under Section10(23C) (iiiab) of the Income Tax Act, 1961 to the petitioner on theground that it was not substantially financed by the Government. Thepetitioner had preferred an appeal to the Respondent No.2 whodismissed the appeal without considering the contentions put forth in the written submission of the petitioner and without affording opportunity tothe petitioner for hearing. The respondent No.2 decided the appeal 6years after the date of institution of the appeal and without serving acopy of the impugned order to the petitioner. The respondent No.3 hasinitiated penalty proceedings against the pertinent. Thus, beingaggrieved by the revenue oriented approach of the respondents and acontinuous violation of the principle of natural justice has preferred theinstant writ petition. 4.The Petitioner is a not for profit institution created through a StateGovernment legislation and exists solely for the purposes of impartingeducation in law. The petitioner receives grants from the Government tocarry out its operations and had sought to claim income tax exemptionunder Section 10923C)(iiiab) of the income Tax Act, 1961. The term“wholly or substantially financed” is not defined under the act and thuswas interpreted to varying degrees by various courts and Tribunals.Rule 2BBB was added to the Income Tax Rules, 1962 on 12.12.2014which, when read with the Explanation added to Section 10(23C) (iiiab)that came into effect on 01.04.2015 (AY 15-16 onwards) states that aninstitution would be considered as being wholly or substantiallyfinanced” by the Government for any previous year if the governmentgrants to the institution exceeded 50% of its total receipts, includingvoluntary contributions, for that previous year. It is to be noted that theExplanatory notes the finance (No.2) Act, 2014 which inserted theExplanation to Section 10923C) (iiiab), clarifies that the amendmentshall be applicable from Assessment Year 2015 onwards and that thesame will be applicable only prospectively. 5.The income tax returns filed by the petitioner for the assessmentyears 2011-12, 2012-12,2015-16, 2016-17 and 2017-18 were selectedfor scrutiny and proceedings were initiated by the respondent No.3. Therespondent No.3 proceeded to pass adverse orders denying the benefitof exemption under Section 10(23C)(iiiab) of the Act to the Petitioner.For the Annual Year 2011-12 and 2012-13, respondent NO.3 alsoretrospectively applied rule 2BBB of the Rules. 6.Being aggrieved by the orders of the respondent No.3, thepetitioner filed appeal before respondent No.2 seeking for the orders tobe set aside on the ground that the AO had erred in rejecting theexemption claimed by the petitioner under Section 10(23C)(iiiab). Therespondent No.2 however passed orders against the petitioner for theAnnual Year 2011-12, 2012-13, 2015-16, 2016-17 and 2017-18 on29.12.2023 without giving any regard to the grounds raised oropportunity of personal hearing and these orders were nevercommunicated to the petitioner. It came into the knowledge of thepetitioner when Orders-in-Appeal were passed. Five impugned orderswere passed against the petition which is a violation of the principles ofnatural justice. All these orders were passed ex parte after aconsiderable delay of 4-6 years and without consideration of any of thegrounds submitted by the petitioner. Thus, the petitioner filedrectification applications before the Respondent No.2 stating inter aliathat it had not considered any of the submissions of the petitioner andthe impugned orders were in clear violation of principles of naturaljustice. Hence the above writ petitions have been filed. 7.Contention of learned Senior counsel for the petitioner is that theproceedings before respondent No.2 were in violation of the principlesof natural justice. It is submitted that Section 250 of the Income Tax Act,1961 provides fro “Procedure in Appeal”. Section 250(7) mandates thatupon disposal of the appeal, the Commissioner (Appeals) mustcommunicate the order passed to the assesseee. An extract of theprovision is produced here below: “(7). On the disposal of the appeal, theCommissioner (Appeals) shall communicate theorder passed by him to the asessee and to thePrincipal Chief Commissioner or ChiefCommissioner of Principal Commissioner orCommissioner.”Commissioner (Appeals) shall communicate theorder passed by him to the asessee and to thePrincipal Chief Commissioner or ChiefCommissioner of Principal Commissioner orCommissioner.” (2) The following shall have the right to be heard atthe hearing of the appeal (a) the appellant, eitherin person or by an authorized representative; (b)the Assessing Officer, either in person or by arepresentative.”the hearing of the appeal (a) the appellant, eitherin person or by an authorized representative; (b)the Assessing Officer, either in person or by arepresentative.” 8.He contended that the impugned order was not physicallycommunicated to the petitioner in the instant case, at the time ofpassing of the order nor was it uploaded to the income tax portal and itcame to the knowledge of the petitioner only when a reminder letter inrelation to show cause notice initiating penalty proceedings wasreceived on 20.05.2024. It is submitted that non-adherence to theprocedure prescribed in the Act is a gross violation of the principles ofnatural justice as it denied the petitioner of the opportunity to file anappeal against the Impugned order within the time limit specified underthe Income Tax Act 1961. 9.He next contended that as per Black’s law dictionary (4[th] Edition)at page 349, it has been defined the term ‘communicate’ a “to bestow, 8.He contended that the impugned order was not physicallycommunicated to the petitioner in the instant case, at the time ofpassing of the order nor was it uploaded to the income tax portal and itcame to the knowledge of the petitioner only when a reminder letter inrelation to show cause notice initiating penalty proceedings wasreceived on 20.05.2024. It is submitted that non-adherence to theprocedure prescribed in the Act is a gross violation of the principles ofnatural justice as it denied the petitioner of the opportunity to file anappeal against the Impugned order within the time limit specified underthe Income Tax Act 1961. 9.He next contended that as per Black’s law dictionary (4[th] Edition)at page 349, it has been defined the term ‘communicate’ a “to bestow, convey, make known, recount, impart’ to give by way of information”.The passing of the impugned order,or its contents were never madeknown to the petitioner and information regarding the same was notgiven until the petitioner realized the same due to receiving the reminderletter pertaining to a Show Cause notice initiating penalty proceedings.Contention of the counsel for the petitioner is that the petitioner hadspecifically requested an opportunity of being heard in the interest ofnatural justice. In the impugned order, respondent No.2 has stated thatthe appellant has not availed any opportunity adding/altering grounds ofappeal before the date of hearing and that the same was not availed. Itis submitted that even if the uploading of the impugned order the portalis considered valid service/communication of the impugned order, theappeal was filed by the petitioner on 01.02.2018 and it was decided sixyears later ie. on 29.12.2023 without giving opportunity of hearing to thepetitioner which is violation of Clause of Section 250 of the Income TaxAct, 1961. He has relied upon the matter of Union of India and Others Vs. Uppuleti Devi Prasad and Others, W.P. No. 20054 and 20190 of2016, MANU/AP/0533/2016 it has been observed that the Order inAppeal to the Chief Commissioner and the Assessing Officer who wasalso denied the opportunity of being heard in the appellate proceedingswas conduct unbecoming of a government servant. 10.The opportunity of personal hearing is a statutory mandate underSection 250(1) and 250(2) of the Income Tax Act, 1961 and the samehas not been complied with before passing the impugned order. It issubmitted that the impugned order has also been passed incontravention of Section 250(6A) which mandates that the appeal must be decided within 1 year. Even though the clause grants some flexibilityby usage of the phrase “where it is possible, may hear and decide”, theimpugned order has been passed six years after the date of institutionof appeal. It is submitted that despite these additional grounds beingraised, the Respondent No.2 stated in the impugned order that thepetitioner had not availed opportunity to add grounds of appeal. He hasrelied upon the decision of the Apex Court in the matter ofM.P. PowerManagement Company Ltd. Jabalpur Vs. Sky Power SoutheastSolar India Private Limited and Others. (20230 2SCC 703, wherein ithas been observed that when the impugned decision is not based onany principle or displays mere whim of the authority, it should beconsidered arbitrary. An extract of the judgment is produced below: “8. We would, therefore, sum up as to when anact is to be treated as arbitrary. The court mustcarefully attend to the facts and thecircumstances of the case. It should find outwhether the impugned decision is based on anyprinciple. If not, it may unerringly point toarbitrariness. If the act betrays caprice or themere exhibition of the whim of the authority itwould sufficiently bear the insignia ofarbitrariness. In this regard, supporting an orderwith a rationale which in the circumstances isfound to be reasonable will for a long way to repela challenge to state action. No doubt the reasonsneed not in every case be part of the order assuch. If there is absence of good faith and theaction is actuated with an oblique motive, it couldbe characterized as being arbitrary. A total non-application of mind without due regard to therights of the parties and public interest may be aclear indicator of arbitrary action….” 11.He submits that the action of the respondent No.2 therefore haveprevented the petition from availing its right of being heard. He has further placed his reliance on the judgment of the Apex Court in thematter of Umanath Pandey V. State of Uttar Pradesh, 2009(327) ELT 241 (SC), wherein it has been observed that the principles of naturaljustice are those rules which have been laid down by the Courts asbeing the minimum protection of the rights of the individual against thearbitrary procedure that may be adopted by a judicial, quasi-judicial andadministration authority while making an order affecting those rights.These rules are intended to prevent such authority from doing injustice. It has been observed as under: “8. the adherence to principles of natural justiceas recognized by all civilized States if of supremeimportance when a quasi-judicial body embarkson determining disputes between the parties, orany administrative action involving civilconsequences if in issue. These principles arewell settled. The first and foremost principle iswhat is commonly known as audi alteram partemrule. It says that no one should be condemnedunheard. 10. Principles of natural justice are those ruleswhich have ben laid down by the Courts as beingthe minimum protection of the rights of theindividual against the arbitrary procedure that naybe adopted by a judicial, quasi judicial andadministrative authority while making an orderaffecting those rights. These rules are intended toprevent such authority from doing injustice.” 12.In another decision of the Apex Court in the matter of DharampalSatyapal Ltd. Vs. Deputy Commissioner of Central Excise, 2015(320)ELT 3 (SC) followed by the decision of the Supreme Court in C.B.Gautam Vs. Union of India (1993) 1 SCC 78 holding that theprinciple of natural justice is applicable even though it was not statutorilymandated. It is submitted that non-consideration of the arguments andnot informing the petitioner of the impugned order violates the principlesof natural justice and the impugned order is therefore liable to be setaside. 13.Another contention of the counsel for the petitioner is that thewordings of Rule 2BBB as well as the explanation to the Section10(23C) (iiiab) are ambiguous and in light of this ambiguity, they mustbe interpreted liberally in favour of the assessee. It is submitted thatboth the Rule 2BBB and the explanation to Section 10(23C)(iiiab) usethe words “shall be considered as being substantially financed by theGovernment for any previous year’. This can be interpreted to mean thatif the asessee is found to substantially financed by the government,thenit should be considered as being substantially financed for all previousyears to that year. It has been held by the Apex Court in the matter ofTarulata Shyam And Others V. CIT, AIR 1977 SC 1802,it has beenheld that words cannot be imported t a statute which are not there.Even if there is an omission, the same can only be remedied bylegislation and not by judicial interpretation. 14.Counsel for the petitioner submits that the petitioner has filedthese instant petitions for quashing and setting aside the impugnedorder-in appeal NO. CIT(A), Raipur dated 29.12.2023 passed by therespondent NO.2 without granting opportunity of hearing to thepetitioner as per Section 250 of the Income Tax Act, 1961. 15. Learned counsel appearing for the respondents submits that the petitions have been preferred by the petitioner against the order of therespondent No.2 under Section 250 of the Income Tax Act, 1961 dated29.12.2023 and the penalty proceedings initiated against the petitionerpertaining to the Assessment year 2011-12. It is submitted that theAssessing Officer concluded the assessment order and called forinitiation of proceedings under Section 271(1)(c) of the Income Tax Act,1961. Against the assessment order, the petitioner filed appeal underSection 246A of the income Tax Act before the Commissioner of IncomeTax (Appeal) on 09.01.2019 wherein the CIT (A) has categoricallymentioned that “considering the totality of the facts and circumstancesof the case and following the ratio laid down in the case of DIT (E) Vs.Tata Institute of Social Science (supra), since the Government grantsreceived by the appellant was 46.61% ie. below 50% as laid down inrule 2BBB of the Income Tax Rules, 1962, it is held that the appellant isnot eligible for claim of exemption under Section 10(23C)(iiiab) of theAct as the appellant failed to fulfill the requirement of section of whollyor substantially financed by the Government. Hence, the action of theAO is upheld.” 16.He further contended that the order passed by the Commissionerof Income Tax (Appeals) under Section 250 of the Income Tax isappealable before the Income Tax Appellate Tribunal under Section 253of the Income Tax Act as per Section 253(3) of the Income Tax Act,every appeal under sub-section (1) or sub-section (2) shall be filedwithin 60 days of the date on which the order is sought to be appealedafter being communicated to the assessee or to the Commissioner. Hesubmits that when the petitioner has not filed any appeal against the order of the CIT(A) dated 29.12.2023, The Assessment Unit IncomeTax Department issued a show cause notice for penalty under Section271(1)(c) of the Income Tax Act, 1961 on 22.04.2024. The petitionerfiled its reply on 25.05.2024 to the show cause notice under Section271(1)(c) of the Act wherein it has been mentioned that the Assessee isalready in the process of filing appeal at Income Tax Appellate Tribunal,Raipur against the order passed by the Income Tax Department and willfurnish the form 36 as soon as the process will be completed. He furthersubmits that instead of filing of appeal against the order of CIT (A) dated29.12.2023, the petitioner had filed application for rectification underSection 154 of the Income Tax Act for rectification of error/mistake in theorder dated 29.12.2023on 28.06.2024 and simultaneously the petitionerhas filed this writ petition against the order of the CIT (A) dated29.12.2023. He submits that two parallel proceeding challenging oneand the same order is not permissible under the law. 17.He submits that once the petitioner has approached the AppellateAuthority invoking the provisions under Section 154 of the Act of 1961by filing a statutory rectification, petitioner could not be permitted to filewrit petition during pendency of said rectification. In this regard, ApexCourt in the case of Satya Pal Anand Vs. State of Madhya Pradesh,(2016) 10 SCC 767, has held thus: “25. It is a well established position that theremedy of writ under Article 226 of theConstitution of India is extra ordinary anddiscretionary. In exercise of writ jurisdiction,the High Court cannot be oblivious to theconduct of the party invoking that remedy.The fact that the party may have several 17.He submits that once the petitioner has approached the AppellateAuthority invoking the provisions under Section 154 of the Act of 1961by filing a statutory rectification, petitioner could not be permitted to filewrit petition during pendency of said rectification. In this regard, ApexCourt in the case of Satya Pal Anand Vs. State of Madhya Pradesh,(2016) 10 SCC 767, has held thus: “25. It is a well established position that theremedy of writ under Article 226 of theConstitution of India is extra ordinary anddiscretionary. In exercise of writ jurisdiction,the High Court cannot be oblivious to theconduct of the party invoking that remedy.The fact that the party may have several remedies for the same cause of action,hemust elect his remedy and cannot bepermitted to indulge in multiplicity of actions.The exercise of discretion to issue a writ is amatter of granting equitable relief. It is aremedy in equity. In the present case, thehigh Court declines to interfere at theinstance of the appellant having noticed theabove clinching facts. No fault can be foundwith the approach of the High Court inrefusing to exercise its writ jurisdictionbecause of the conduct of the appellant inpursuing multiple proceedings for the samerelief and can also because the appellant hadan alternative and efficacious statutoryremedy to which he has already resorted to.This view of the High Court has found favourwith Dipak Mishra J. We respectfully agreewith that view.” 18. He has further placed his reliance in the matter of Indo Colchem Ltd. Vs Deputy Commissioner of Income Tax (2023) 149Taxman.Com 30 (Gujrat) has held that Noticing the fat that muchwater has flown after the objections were raised against the notice ofreopening was issued and as the petitioner is already before theAppellate Authority, this Court does not deem it appropriate and detainhis petition as the petitioner cannot ride on two horses. Without enteringinto the merits of the case, the Appellate Authority to consider allaspects including the one which has been raised before this Court. 19.In the matter of Tirupathi Buildings and Offices (P) Ltd. Vs.Principal Commissioner of Income Tax (2023) 150 Taxmann.com 262 (Delhi) reads as under: “7. In the opinion of this Court, the petitionerhas an alternative and effective remedy byway of an appeal before the ITAT.Accordingly, the present writ petition isdisposed of with liberty to the petitioner tourge all his contentions and submissionsbefore the ITAT.” 20.Counsel for the respondent submits that the petitioner hadalternative remedy available and he may raise the issue before theAppellate Authority and therefore, he submits that the petitions filed bythe petitioner may e dismissed and the same can be raised before theAppellate Authority. 21.Heard learned counsel for the parties and perused the materialavailable records with utmost circumspection. 22. On perusal of the record, it appears that the income Tax returnfiled by the petitioner for the Assessment Year 2011-12, 2012-13, 2015-16, 2016-17 and 2017-18 were selected for scrutiny and proceedingswere initiated by the respondent No.3 to pass adverse orders denyingthe benefit of exemption under Section 10(23C)(iiiab) of the Income TaxAct to the petitioner. It is also admitted fact that the assessment year2011-12, 2012-13, 2015-16, 2016-17 and 2017-18 was alsoretrospectively applied Rule 2BBB of the Rules. Aggrieved by the ordersof respondent No.3, the petitioner had filed appeal before therespondent No.2 on 09.01.2019. Since no orders were passed withinthe time line of one year prescribed under Section 250 of the IncomeTax Act, additional submissions were filed by the petitioner on 23.05.2023 and specifically requested for opportunity of hearing. 23.05.2023 and specifically requested for opportunity of hearing. 23.From perusal of the records, it is clear that the impugned orderdated 19.12.2023 was passed without affording opportunity of hearingto the petitioner and the same were not served to the petitioner eitherphysically or electronically. The petitioner originally challenged the orderof the Assessment Officer on 09.01.2019 but respondent No.2 haspassed the order on 29.12.2023 after a lapse of four years. In theinstant case, the petitioner has moved a rejoinder before the AppellateAuthority requesting for a personal hearing but the said request was notconsidered by the Appellate Authority. If the aplication/request wasmade for personal hearing by the petitioner before the AppellateAuthority, the Income Tax authority ought to have allowed the saidapplication by arranging for video conferencing argument. At least inthe instant case, it stands established the request from the petitionerwas made before the Appellate Authority but the Appellate Authority didnot give opportunity of hearing to the petitioner. Therefore, this Court isof the considered view that there is a violation of principle of naturaljustice and if the defect of principle of violation of natural justice hasoccurred in the initial stage of proceedings, it cannot be cured at thestage of appeal. No doubt, the petitioner has a right to avail the statutoryappellate remedy but when the impugned order was passed by therespondent No.2 in violation of principle of natural justice, it cannot bealleviated. 24.In the Institute of Chartered Accounts of India Vs. L.K.Ratnaand Others, AIR1987 SC71, Apex Court has held that the existence ofan alternative statutory remedy does not undo the violation of natural justice in the first stage. A defect of natural justice existing in the trialstage, cannot be cured by giving an opportunity of hearing at theappellate stage. It is the contention of the counsel for the respondentthat the petitioner has already availed the remedy of rectification of theorder passed by the respondent No.2. 25.In view of the aforesaid discussion, given the aforesaid facts andcircumstances, it was incumbent upon the respondent to accord apersonal hearing to the petitioner. Since the petitioner has filed therectification application, in the event the impugned order is set asideand the matter is remitted back to the respondent for re-considerationafresh, the petitioner would unconditionally withdraw the rectificationapplication. 26.Thus, this Court is of the view that the principles of natural justiceto the aforesaid extent, particularly, when the Act itself provides for aprocedure for the same stands violated. The impugned order dated29.12.2023 is set aside and it is directed that the petitioner shall appearbefore the Appellate Authority/respondent No.2 on 28[th] February 2025who shall fix the date of personal hearing to the petitioner and followingshall have the right to be heard at the time of hearing of the appeal: (i) the petitioner, either in person or by an authorized representative (ii) the Assessng Officer, either in person or by arepresentative.representative. The Appellate Tribunal shall thereafter decide the case within a periodof 45 days from the date of hearing of the appeal. The petitioner hasright to raise all objections which have been raised in the said petitionbefore the Appellate Tribunal. 27.It is made clear that this Court has not entered into the merits ofthe assessment made by the Assessing Authority and the ApepllateAuthority would be free to take decision after hearing the parties.Hence it would be just and appropriate to set aside the impugned orderand remit back to respondent No.2 for re-consideration afresh inaccordance with law. 28.In view of the above, the writ petitions are allowed to the aforesaid extent. Sd/- (Arvind Kumar Verma) Digitally signedby SUGUNASUGUNADUBEYDUBEYDate:2025.02.2213:33:32 +0530 Judge