Wpt v. Chief Commissioner Regional Faceless Assessmentcentre, Aayakar Bhawan, White Church Road Indoremadhya Pradesh., District : Indore, Madhya Pradesh Centre, Aayaka

NAFR HIGH COURT OF CHHATTISGARH, BILASPUROrder reserved on 12.04.2022Order delivered on 04/05/2022 WPT No. 87 of 2021 M/s Sumeet Gems And Jewellers Pvt. Ltd. ACompany Duly Incorporated Under The Provisions OfCompanies Act , 1956 And Companies Act , 2013Having Its Office At Tahir Plaza, Malviya Road,Raipur 492001 Through Its Authorized Signatory AndDirector , Ankit Kankariya, S/o Shri Ashok KumarKankariyaaged About 31 Years, R/o Sumeet , 21/447,Opp. Holy Hearts School, Civil Lines, Raipur 492001.M/s Sumeet Gems And Jewellers Pvt. Ltd. ACompany Duly Incorporated Under The Provisions OfCompanies Act , 1956 And Companies Act , 2013Having Its Office At Tahir Plaza, Malviya Road,Raipur 492001 Through Its Authorized Signatory AndDirector , Ankit Kankariya, S/o Shri Ashok KumarKankariyaaged About 31 Years, R/o Sumeet , 21/447,Opp. Holy Hearts School, Civil Lines, Raipur 492001. ---- Petitioner Versus 1. Principal Chief Commissioner Of Income Tax NationalFaceless Assessment Centre, Room No. 401, 2ndFloor, E Ramp, Jawaharlal Nehru Stadium , NewDelhi 110003 Faceless Assessment Centre, Room No. 401, 2ndFloor, E Ramp, Jawaharlal Nehru Stadium , NewDelhi 110003 2. Chief Commissioner Regional Faceless AssessmentCentre, Aayakar Bhawan, White Church Road IndoreMadhya Pradesh., District : Indore, Madhya Pradesh Centre, Aayakar Bhawan, White Church Road IndoreMadhya Pradesh., District : Indore, Madhya Pradesh 3. Principal Commissioner Of Income Tax RegionalFaceless Assessment Centre, Aayakar Bhawan,Central Revenue Buildings, Civil Lines RaipurChhattisgarh. Faceless Assessment Centre, Aayakar Bhawan,Central Revenue Buildings, Civil Lines RaipurChhattisgarh. 4. Assistant Commissioner Of Income Tax (Acit)National Faceless Assessment Centre, Room No.401, 2nd Floor, E Ramp Jawarharlal Nehru Stadium,New Delhi 110003 National Faceless Assessment Centre, Room No.401, 2nd Floor, E Ramp Jawarharlal Nehru Stadium,New Delhi 110003 ---- Respondents For Petitioner:Mr. Neelabh Dubey & Ms. Smiti Sharma, AdvocatesSharma, AdvocatesFor Respondents:Mr. Amit Chaudhary, Advocate Hon'ble Mr. Justice Parth Prateem Sahu C A V Order 1. Petitioner company aggrieved by the order ofassessment under Section 143 (3) of the Income TaxAct, 1961 (for short ‘the Act of 1961’) passed on17.4.2021 has approached this Court by filing instantassessment under Section 143 (3) of the Income TaxAct, 1961 (for short ‘the Act of 1961’) passed on17.4.2021 has approached this Court by filing instant writ petition seeking following reliefs:- “10.1. Calling for the records of the case. 10.2. Quashing order of the Assessing Officer,dated 17.04.2021 being Annexure P/15asbeing illegal and arbitrary. 10.3. Quashing all consequential demandnotices including demand notice dated17.04.2021 being Annexure P/16. 10.4. Quashing the notice initiating penaltyproceedings under S. 271AAC (1) beingAnnexure P/17dated 17.04.2021. 10.5. As an interim measure, staying the effectand operation of the assessment order beingAnnexure P/15dated 17.04.2021 and directingthe respondents to not take any coercivemeasures for recovery of tax demands till thedisposal of this petition. and also staying theeffect and operation of the notice initiatingpenalty proceedings under S. 271 AAC (1)being Annexure P/17dated 17.04.2021. 10.6. Any other relief that this Hon'ble rt maydeem fit.” 2. Learned counsel for the petitioner would submit thatpetitioner is a company engaged in the trading 10.4. Quashing the notice initiating penaltyproceedings under S. 271AAC (1) beingAnnexure P/17dated 17.04.2021. 10.5. As an interim measure, staying the effectand operation of the assessment order beingAnnexure P/15dated 17.04.2021 and directingthe respondents to not take any coercivemeasures for recovery of tax demands till thedisposal of this petition. and also staying theeffect and operation of the notice initiatingpenalty proceedings under S. 271 AAC (1)being Annexure P/17dated 17.04.2021. 10.6. Any other relief that this Hon'ble rt maydeem fit.” 2. Learned counsel for the petitioner would submit thatpetitioner is a company engaged in the trading business of gold, silver bullion and alsomanufacturing & selling gold jewelleries, diamondand other precious stones. On 8.10.2018 petitionercompany submitted its return under Section 139 (1)of the Act of 1961 for the assessment year 2018-19declaring its total income of Rs.3,55,90,530/- with a tax liability of Rs.1,17,71,410/-. Petitioner receivednotice dated 23.9.2019 issued under Section 143 (2)of the Act of 1961 regarding initiation of proceedingsunder Computer Aided Scrutiny Selection (CASS)raising certain issues. Petitioner thereafter receivedletter dated 15.10.2020 informing that its case will becompleted under the Faceless Assessment Scheme,2019 (for short ‘the Scheme’). Vide letter dated17.12.2020 petitioner was asked to submit itsresponse along with supporting documents on orbefore 1.1.2021. Petitioner submitted applicationdated 4.1.2021 seeking time to file reply to notice.Respondent Department issued detailed noticeraising specific queries and called upon petitioner tosubmit its response on the same, to which petitionerfiled response. Thereafter another notice was issuedto petitioner seeking response on the pointsmentioned therein to which also petitionerresponded. She submits that in the meantime,Section 144B of the Act of 1961 was inserted underthe Taxation and Other Laws (Relaxation andAmendment of Certain Provisions) Act, 2020, whichcame into force w.e.f. 01.04.2021. Section 144B ofthe Act of 1961 provides detailed procedure to befollowed by the Department for assessment under theFaceless Scheme. As per Section 144-B of the Act of1961, the respondent Department is required to issue draft assessment to the National FacelessAssessment Centre to provide an opportunity toassessee, in case any variation prejudicial to theinterest of assessee is proposed, by serving draftassessment and notice calling upon assessee toshow-cause as to why proposed variation should notbe made. Petitioner was not served with any suchshow-cause notice, thereby not granted anyopportunity of hearing. Respondent Departmentwithout considering response of petitioners hadpassed the order of assessment requiring thepetitioner to pay amount of Rs.2,07,05,690/- and alsonotice intimating petitioners about initiation ofproceedings for imposition of penalty under Section271-AAC (1) of the Act of 1961. The order ofassessment and consequent proceedings were drawnafter coming into force of Section 144B of the Act of1961. The proceedings drawn for assessment underSection 143 (3) is in violation of the specificprovisions contained under Section 144B i.e. offollowing mandatory procedure before passingassessment order under Section 143 (3). She alsocontended that petitioners ought to have been givennotice of proposed variations along with draftassessment order so that petitioner could have anopportunity to put forth its case before the authoritiesconcerned. To alienate human interference between tax payers and tax officers and to bring transparencyduring tax administration. The Scheme was furthermodified vide Notification No.60/2020 & 61/2020. Itcame into force with effect from 1.4.2021 by insertionof Section 144B and other provisions. Section 144Bof the Act of 1961 provides for issuance of show-cause notice at the time of draft assessment or finaldraft assessment where there is proposal to makeany variation which is prejudicial to the interest of anassessee. In support of her contention, she referredto specific provision under Section 144B (1) (xvi) (b)and (xxv) of the Act of 1961. She submits that asprocedure prescribed for assessment under theScheme has not been followed, consequence of suchprocedure is also provided under Section 144B (9) ofthe Act of 1961. If assessment is not made inaccordance with procedure laid down under thisSection, it shall be non-est. It is also argued that National FacelessAssessment Centre, Delhi has issued Letter bearingNo. NaFAC/ Delhi / CIT-3 / 2021-22 / 340 / 148 dated31.12.2021 to all the Chief Commissioner of IncomeTax Department after analyzing procedural lapsesduring assessment proceedings of passing of anorder without serving a draft assessment order /show-cause notice; passing of an order without giving opportunity of personal hearing to assessee,etc. It was further directed to check upon such issuesbefore approving final assessment order. In supportof her contention she places reliance upon the orderdated 14.1.2022 passed by Division Bench of DelhiHigh Court in WPC No.14528/2021 and CMApplication No.45702/2021 (Bharat Aluminum Co.Ltd. Vs Union of India); order dated 31.5.2021passed by Delhi High Court in WPC No.5587/2021 &CM Application No.17382/2021; order dated5.10.2021 passed by Division Bench of High Court ofGujarat at Ahmedabad in R/Special Leave ApplicationNo.7662/2021 [Gandhi Realty (India) Pvt. Ltd. vs.Assistant/Joint/Deputy/Assistant Commissioner ofIncome Tax/ Income Tax Officer. 3. Learned counsel for respondent department wouldsubmit that assessment order passed by respondentis appealable under Section 246A of the Act of 1961before the Commissioner of Income Tax (Appeals)(CIT) and thereafter further appeal is provided underSections 254 & 260 A of the Act of 1961. He furthersubmitted that petitioners have directly come to thisCourt against the order of assessment withoutavailing efficacious alternative remedy availableunder the law. Hence writ petitions are liable to bedismissed. 7 4. In reply to objection with regard to maintainability ofwrit petition, learned counsel for petitioner submitsthat as there is non-compliance of the provisionscontained in Section 144B of the Act of 1961 whichitself provides that any proceeding initiated forassessment, which is not made in accordance withprocedure laid down under Section 144B of the Act of1961, shall be non-est. Hence writ petition ismaintainable. writ petition, learned counsel for petitioner submitsthat as there is non-compliance of the provisionscontained in Section 144B of the Act of 1961 whichitself provides that any proceeding initiated forassessment, which is not made in accordance withprocedure laid down under Section 144B of the Act of1961, shall be non-est. Hence writ petition ismaintainable. 5. I have heard learned counsel for the parties andperused the documents available on record.perused the documents available on record. 5. I have heard learned counsel for the parties andperused the documents available on record.perused the documents available on record. 6. Main thrust of learned counsel for petitioner at thetime of submission of his case on merits is that non-following of the procedure prescribed under Section144B of the Act of 1961 will make the proceedingsnon-est. The Ministry of Law and Justice (LegislativeDepartment), New Delhi issued Gazette Notificationdated 30.3.2022 wherein sub-section (9) of Section144B of the Act of 1961 has been omitted w.e.f.1.4.2021. By virtue of amendment brought in by theLegislature, the ground raised before this Court is notavailable as said provision itself stood omitted fromthe statute book with retrospective effect. Petitioneris having efficacious alternative statutory remedy offiling appeal before the appellate authority who canconsider and decide other issues raised in this writtime of submission of his case on merits is that non-following of the procedure prescribed under Section144B of the Act of 1961 will make the proceedingsnon-est. The Ministry of Law and Justice (LegislativeDepartment), New Delhi issued Gazette Notificationdated 30.3.2022 wherein sub-section (9) of Section144B of the Act of 1961 has been omitted w.e.f.1.4.2021. By virtue of amendment brought in by theLegislature, the ground raised before this Court is notavailable as said provision itself stood omitted fromthe statute book with retrospective effect. Petitioneris having efficacious alternative statutory remedy offiling appeal before the appellate authority who canconsider and decide other issues raised in this writ petition. 7. For the foregoing reasons, I am not inclined toentertain this writ petition as the petitioner is havingefficacious alternate statutory remedy of appeal andit is accordingly dismissed. Petitioner may approachAppellate Authority under the Act of 1961 raising allgrievances and grounds, as raised in this petition. Ifpetitioner prefers an appeal within a period of thirtydays from today, the Appellate Authority shallconsider and decide the same on its own merits inaccordance with law. entertain this writ petition as the petitioner is havingefficacious alternate statutory remedy of appeal andit is accordingly dismissed. Petitioner may approachAppellate Authority under the Act of 1961 raising allgrievances and grounds, as raised in this petition. Ifpetitioner prefers an appeal within a period of thirtydays from today, the Appellate Authority shallconsider and decide the same on its own merits inaccordance with law. Sd/- (Parth Prateem Sahu)JudgeJudge roshan/-