PARUL BHARAT SHAH vs. NATIONAL FACELESS ASSESSMENT CENTRE (FORMERLY KNOWN AS NATIONAL E ASSESSMENT CENTRE) AND 4 ORS.

National Faceless Assessment Centre (formerly known as) National E-Assessment Centre), Income Tax Department, New Delhi – 110 003. 2. Income Tax Officer, Ward 20(2)(1), Mumbai Piramal Chambers, Dr. SS Rao Marg, Parel, Mumbai – 400 012. 3. Principal Commissioner of Income Tax-20, Mumbai Piramal Chambers, Dr. SS Rao Marg, Parel, Mumbai – 400 012. 4. The Central Board of Direct Taxes, North Block, New Delhi – 110 002. 5. The Union of India Through the Secretary, Ministry of Finance, Government of India, North Block, New Delhi – 110 001. …. Respondents Mr. Devendra Jain i/b. Radha Halbe for the Petitioner. Mr. Suresh Kumar for the Respondents. CORAM : DHIRAJ SINGH THAKUR AND VALMIKI SA MENEZES, JJ. RESERVED ON : 17th OCTOBER, 2022 PRONOUNCED ON : 2nd DECEMBER, 2022 CNR No : HCBM020305862022 JUDGMENT :- (PER VALMIKI SA MENEZES, J)

This Writ Petition filed under Article 226 of the Constitution of India challenges assessment order dated 02.09.2022 passed under Section 143(3) read with Section 144B of the Income Tax Act, 1961 (“the Act”), notice of demand dated 02.09.2022 issued under Section 156 of the Act and show-cause notice dated 02.09.2022 for initiating penalty proceedings under Section 274 read with Section 270A of the said Act.

The case as stated in the petition is that the Petitioner had filed her return for the assessment year 2020-21 on 04.12.2020. By a notice dated 29.06.2021 issued to the Petitioner under the provisions of Section 143(2) of the Act, the Petitioner’s case was taken up for scrutiny and she was called upon to file her reply to a questionnaire(s) annexed to the notice within 15 days from the date of receipt thereof. By a notice dated 18.11.2021 issued under Section 142(1) of the Act, the Petitioner was called upon to submit details of accounts and documents specified in Annexure to the said notice, more specifically in reference to the gross and net agricultural income disclosed by the Petitioner in the amount of Rs.35,19,290/- as against which, there was an expenditure of only Rs.2,40,800/- incurred by her. The notice required the Petitioner to produce documents and details of crop grown on agricultural land claimed to be in her ownership, alongwith the documents of ownership pertaining to the said lands. In response to the said notice, the Petitioner filed her submissions on 04.12.2022, after which she received yet another notice dated 10.12.2021 under Section 142(1) of the Act, calling for further details as to ownership of her land holding and quantity of the crops grown thereon. The Petitioner filed her response on 22.12.2021 submitting therewith details of acquisition of the various agricultural lands from where she claims to have derived agricultural income. Alongwith her reply, the Petitioner also submitted revenue documents and details of the sale deed by which M/s. Palak Impex Pvt. Ltd., of which the Petitioner claims to be a Director has come into ownership of the land.

After considering the response of the Petitioner, the Respondents issued her a show-cause notice dated 03.02.2022, concluding that the agricultural income disclosed by the Petitioner in the amount of Rs.35,19,290/- was actually derived from land which did not belong to the Petitioner and consequently the Respondents proposed that the entire income be added to the total income of the Petitioner under the head income from other sources under Section 56 of the Act. The show-cause notice called upon the Petitioner to file her response to the said notice by 10.02.2022 and further informed the Petitioner that after filing the written reply, she may request a personal hearing which would be conducted through video conferencing. The show-cause notice was accompanied with a draft assessment order. The said notice was issued by the National Face Less Assessment Scheme under the Act. By e-mail dated 06.02.2022, the Petitioner sought an adjournment till 25.02.2022 for filing her reply through the e-portal of the Face Less Assessment Centre, Delhi. The reasons stated for seeking adjournment was for the Petitioner to seek an opinion in the matter.

It is the Petitioner’s case that she received no response to her application for adjournment; that when she tried uploading her reply on 19.02.2022, it was notice that e-proceedings portal had been closed without giving the Petitioner an opportunity of hearing through video conferencing to explain her case or to file her reply. Nevertheless, the Petitioner uploaded her grievance on the e-portal of the Face Less Assessment Centre on 19.02.2022 itself, stating that she had not been heard and specifically requested therein for an opportunity of being heard through video conferencing. The Petitioner also sent a copy of her reply dated 19.02.2022 to the Face Less Assessment Centre, through her chartered accountant, as there was no manner of uploading the same, the portal having been shut for the Petitioner’s case. Thereafter, the Petitioner received the impugned order dated 02.09.2022 alongwith the impugned notice of demand and notice for penalty under the said Act. The order of assessment impugned in this petition has, without affording the Petitioner a hearing online, concluded from the documents before the Assessing Officer, that the assessee is not in possession of agricultural land in respect of which she had disclosed income. Consequently, it held that the same is not admissible in the hand of the assessee. The assessment order disallows the claim of the Petitioner that her agriculture income of Rs.35,19,290/- was exempted under the Act and threats the same to be under the head of income from other sources under Section 56 of the Act. Consequently, the Respondents initiated penalty proceedings against the Petitioner.

We have heard Shri. Devendra Jain, learned counsel for the Petitioner and Mr. Suresh Kumar, learned counsel for the Respondents. Perused the record and heard the submissions made by the parties.

The primary ground for invoking this Courts powers under Article 226 of the Constitution of India is that the Respondent had not given the Petitioner an adequate opportunity for filing her reply, or for a hearing through video conferencing as is required to be done under the provisions of Section 144B of the Act. In normal course, the Petitioner would avail the alternate statutory remedy of filing an appeal against the order of assessment. However, it is the submission of the learned counsel for the Petitioner that denial of the principles of natural justice to the Petitioner by not affording her a hearing through video conferencing as is envisaged under the provisions of Section 144B of the Act, which provides the whole procedure for a face less assessment. The Petitioner further submits that the show-cause notice dated 03.02.2022 issued under Section 144(b) of the Act itself calls upon the Petitioner to file her response online requiring her to request for a personal hearing for making her oral submissions.

On going through the record of the show-cause notice, we find that in terms of the provisions of Section 144B of the Act, the Petitioner was directed to file her reply by 10.02.2022 and thereafter to make request for a personal hearing through a video conferencing. The Petitioner has infact sought an extension of the date by which the reply was to be filed till 25.02.20022, but received no response to her request. On 19.02.2022 the Petitioner attempted to upload her reply and found that the e-portal was closed. Though on the same day, she specifically requests for an opportunity of hearing in the matter by video conferencing though the Grievance Resolution Portal of the Centre. The Respondents appear to have ignored the request for hearing by video conferencing and have after a period of almost seven months, passed the assessment order on 02.09.2022. 8. We are of the opinion that the Respondent has not afforded to the Petitioner a fair hearing in the matter. The Respondents ought to have either responded to the Petitioner’s request for extension of time till 25.02.2022 for filing her reply, by rejecting her request or at least responded to the Petitioner’s request on 19.02.2022 for an online hearing of her case by video conferencing. Having not given to the Petitioner an opportunity of personal hearing as was required to be done under the provisions of Section 144B of the Act as specified in the show-cause notice dated 03.02.2022 itself, we find that the Respondents have acted in arbitrary manner.

Consequently, we set aside the order of assessment dated 03.02.2022, the notice of demand under Section 156 and show-cause notice initiated penalty proceedings under Section 270 read with Section 270A of the Act of the same date, passed by the Respondent assessing officer. Consequently, we direct the Face Less Assessment Centre, Delhi, to give an opportunity of personal hearing to the Petitioner through the video conferencing and pass a fresh order after considering her response.

Writ Petition is disposed of with above directions. [VALMIKI SA MENEZES, J.] [ DHIRAJ SINGH THAKUR, J.]