Wpt v. Chief Commissioner, Regional Faceless Assessment Centre,Aaykar Bhawan, White Church Road, Indore (Mp)Aaykar Bhawan, White Church Road, Indore (Mp

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Order Reserved on 12.4.2022 Order delivered on 04/05/2022 WPT No.93 of 2021 M/s Suyash Buildcon, a partnership firm duly constituted andregistered under the provisions of the Partnership Act, 1932,having its office at Jai Anand Parisar, Jain Gali, GandhiChowk, Durg 491001, Chhattisgarh through one of its Partnersand authorized signatory Sajal Jain, S/o Shri Devendra Jain,aged about 36 years, R/o Jai Anand Parisar, Jain Gulli, DurgDurg (CG).registered under the provisions of the Partnership Act, 1932,having its office at Jai Anand Parisar, Jain Gali, GandhiChowk, Durg 491001, Chhattisgarh through one of its Partnersand authorized signatory Sajal Jain, S/o Shri Devendra Jain,aged about 36 years, R/o Jai Anand Parisar, Jain Gulli, DurgDurg (CG). ---- Petitioner Versus 1. Principal Chief Commissioner of Income Tax, NationalFaceless Assessment Centre, Room No.401, 2[nd] Floor, E-Ramp, Jawaharlal Nehru Stadium, New Delhi- 110003.Faceless Assessment Centre, Room No.401, 2[nd] Floor, E-Ramp, Jawaharlal Nehru Stadium, New Delhi- 110003. 2. Chief Commissioner, Regional Faceless Assessment Centre,Aaykar Bhawan, White Church Road, Indore (MP)Aaykar Bhawan, White Church Road, Indore (MP) 3. Principal Commissioner of Income Tax, Regional FacelessAssessment Centre, Aaykar Bhawan, Central RevenueBuildings, Civil Lines, Raipur (CG)Assessment Centre, Aaykar Bhawan, Central RevenueBuildings, Civil Lines, Raipur (CG) 4. Assistant Commissioner of Income Tax (ACIT), NationalFaceless Assessment Centre, Room No.401, 2[nd] Floor, E-Ramp, Jawaharlal Nehru Stadium, New Delhi- 110003.Faceless Assessment Centre, Room No.401, 2[nd] Floor, E-Ramp, Jawaharlal Nehru Stadium, New Delhi- 110003. ---- Respondents --------------------------------------------------------------------------------------------------- For Petitioner:Mr. Neelabh Dubey & Mrs. Smiti Sharma, AdvocatesSharma, AdvocatesFor Respondent :Mr. Amit Chaudhary, Advocate. Hon'ble Mr. Justice Parth Prateem Sahu, J CAV Order 1. Petitioner-Firm aggrieved by the order of assessmentunder Section 143 (3) of the Income Tax Act, 1961(for short ‘the Act of 1961’) passed on 16.4.2021 hasapproached this Court by filing instant writ petitionseeking following reliefs:- “10.1. Calling for the records of the case. 10.2. Quashing order of the AssessingOfficer, dated 16.04.2021 being AnnexureP/18as being illegal and arbitrary. 10.3. Quashing all consequential demandnotices including demand notice dated16.04.2021 being Annexure P/18. 10.4. Quashing the notice initiating penaltyproceedings under S. 270A being AnnexureP-19 dated 16.04.2021. 10.4. As an interim measure, staying theeffect and operation of the assessment orderbeing Annexure P-18dated 16.04.2021 anddirecting the respondents to not take anycoercive measures for recovery of taxdemands till the disposal of this petition andalso staying the effect and operation of thenotice initiating penalty proceedings under S.270A being Annexure P/19 dated 16.4.2021. 10.6. Any other relief that this Hon’ble Courtmay deem fit.” 10.3. Quashing all consequential demandnotices including demand notice dated16.04.2021 being Annexure P/18. 10.4. Quashing the notice initiating penaltyproceedings under S. 270A being AnnexureP-19 dated 16.04.2021. 10.4. As an interim measure, staying theeffect and operation of the assessment orderbeing Annexure P-18dated 16.04.2021 anddirecting the respondents to not take anycoercive measures for recovery of taxdemands till the disposal of this petition andalso staying the effect and operation of thenotice initiating penalty proceedings under S.270A being Annexure P/19 dated 16.4.2021. 10.6. Any other relief that this Hon’ble Courtmay deem fit.” 2. Learned counsel for the petitioner would submit thatpetitioner Firm engaged in the business of realestate, construction and development since 2013. On27.11.2018 petitioner submitted its return underSection 139 (1) of the Act of 1961 for the assessmentyear 2018-19 declaring its total income ofRs.37,42,620/- with tax liability of Rs.11,70,194/-. AspetitionerhasdepositedadvancetaxofRs.14,00,000/-, therefore, claimed refund ofRs.2,34,760/- in the return filed by it. RespondentDepartment served a notice under Section 143 (2) ofthe Act of 1961 upon the petitioner informing aboutinitiation of scrutiny proceedings under the ComputerAided Scrutiny Selection (CASS) and called uponpetitioner to furnish required documents andaccounts based on specific queries. Vide letterdated 15.10.2020 petitioner was informed thatpetitioner’s case will be completed under theFaceless Assessment Scheme, 2019 (for short ‘theScheme’), followed by another notice dated19.12.2020 asking to furnish documents andaccounts as per annexure to notice. Petitionercomplied with queries and request/direction ofrespondent department of furnishing accounts anddocuments. Respondent Department again issuednotice on 27.3.2021 questioning as to why 12.5% WIP of two projects should not be treated as incomeof petitioner for the assessment year underconsideration in view of provisions of Section 43CBof the Act of 1961. Petitioner filed its replymentioning that query raised by the Department wasalready answered in reply dated 4.2.2021.Respondent Department issued notice under Section144B (1) (xvi) (b) of the Act of 1961 along with draftassessment order proposing an addition ofRs.1,69,87,406/- to the returned income of petitioner.This notice was also responded by petitioner on8.4.2021 and sought time on medical ground.Respondent Department completed assessmentproceedings and passed an order of assessmentunder Section 143 (3) read with Section 143 (3A) &143 (3B) of the Act of 1961 on 16.4.2021. Learned counsel submits that respondentdepartment initiated assessment proceedings in theyear 2020 and in the meantime, Section 144B of theAct of 1961 was inserted envisaging procedure to befollowed by the Income Tax Department for carryingout assessment process in a faceless manner.RespondentDepartmentfollowingprocedureprescribed under Section 144B of the Act of 1961,completed assessment proceedings and concluded Learned counsel submits that respondentdepartment initiated assessment proceedings in theyear 2020 and in the meantime, Section 144B of theAct of 1961 was inserted envisaging procedure to befollowed by the Income Tax Department for carryingout assessment process in a faceless manner.RespondentDepartmentfollowingprocedureprescribed under Section 144B of the Act of 1961,completed assessment proceedings and concluded that there is variation prejudicial to the interest ofassessee, and accordingly issued notice along withdraft assessment providing opportunity of hearing toassessee. After receipt of notice along with draftassessment, petitioner submitted application on14.4.2021 requesting for grant of an opportunity ofhearing (virtual hearing) before proceeding further inthe matter, mentioning descriptive reasons for virtualhearing. Respondent department paid no heed to therequest of petitioner for virtual hearing and on16.4.2021 passed assessment order under Section143 (3) read with Section 143 (3A) & 143 (3B) of theAct of 1961. It is contended that newly insertedprovisions under Section 144B of the Act of 1961came into effect from 1.4.2021, according to which,where a variation prejudicial to interest of assesseeis proposed in draft assessment order or finalassessment order or revised draft assessment order,assessee or its representative, as the case may be,may request for personal hearing to make his oralsubmission or present his case before the IncomeTax Authority. Petitioner made request for virtualhearing which was not considered and therebyrespondent authorities have acted contrary to theprocedure prescribed under Section 144B of the Actof 1961. Hence, the entire assessment proceeding is non-est in view of provisions of Section 144B (9) ofthe Act of 1961 and are liable to be quashed. In support of above contention, learned counselplaces reliance on the order of High Court of Delhidated 3.5.2021 in WPC No.4814/2021 (DJSurfactants v. National E-assessment Centre, IncomeTax Department, New Delhi); order dated 28.4.2021passed by High Court of Madras in WPNo.10693/2021 & WMP Nos.11326 and 11327/2021(M/s Magick Woods Exports Pvt. Ltd. vs.Additional/Joint/Deputy/Assistant Commissioner ofIncome Tax); order dated 17.5.2021 passed by DelhiHigh Court in WPC No.5277/2021 (RKKR Foundationvs. National Faceless Assessment Centre, NewDelhi); order dated 10.5.2021 passed by Delhi HighCourt in WPC No.5234/2021 & CM Nos.16065-67/2021; order dated 13.5.2021 passed by BombayHigh Court in WPL No.11224/2021 (Raja Builders vs.National Faceless Assessment Centre & ors); orderdated 6.5.2021 passed by Bombay High Court inWPL No.11052/2021 (Parag Kishorchandra Shah vs.National Faceless Assessment Centre & ors); orderdated 19.5.2021 passed by Delhi High Court in WPCNo.5235/2021 & CM Appl. No.16068/2021 (Renew Power Private Ltd. vs. National E-Assessment CentreDelhi & ors); Power Private Ltd. vs. National E-Assessment CentreDelhi & ors); 3. Learned counsel for respondents would submit thatassessment order dated 16.4.2021 passed byrespondent is appealaable under Section 246A of theAct of 1961 before the Commissioner of Income Tax(Appeals) (CIT) and thereafter further appeal isprovided under Sections 254 & 260A of the Act of1961. Petitioner has directly come to this Courtagainst the order of assessment without availingefficacious alternative remedy available under thelaw. Hence writ petition is not maintainable and it isliable to be dismissed. However, factual submissionsmade by learned counsel for petitioner based onPage No.100 of writ petition that petitioner maderequest for virtual hearing (personal hearing) on14.4.2021 is not disputed by learned counsel forrespondents. In support of his contention, he placeshis reliance on the orders passed this High Court inWPT Nos.60/2016, 64/2018, 91/2018, 2/2019,142/2021; WA No.293/2017. 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 whichwrit petition, learned counsel for petitioner submitsthat as there is non-compliance of the provisionscontained in Section 144B of the Act of 1961 which itself 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. 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 isnot available as said provision itself stood omittedfrom the statute book with retrospective effect.Petitioner is having efficacious alternative statutoryremedy of filing appeal before the appellate authoritywho can consider and decide other issues raised inthis writ petition. time 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 isnot available as said provision itself stood omittedfrom the statute book with retrospective effect.Petitioner is having efficacious alternative statutoryremedy of filing appeal before the appellate authoritywho can consider and decide other issues raised inthis writ petition. 7. For the foregoing reasons, I am not inclined toentertain this writ petition as the petitioner is havingentertain this writ petition as the petitioner is having efficacious 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. 7. For the foregoing reasons, I am not inclined toentertain this writ petition as the petitioner is havingentertain this writ petition as the petitioner is having efficacious 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)Judge roshan/-