VIBGYOR VINIMAY PVT. LTD. vs. ADDITIONAL / JOINT / DEPUTY / ASSISTANT COMMISSIONER OF INCOME TAX/ INCOME -TAX OFFICER AND ORS

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5719 OF 2022 Vibgyor Vinimay Private Limited …Petitioner Versus Additional / Joint / Deputy / Assistant Commissioner of Income Tax / Income-tax Officer National Faceless Assessment Centre, Delhi & Ors …Respondents

Mr. Jeet Kamdar i/b Ganeshmurthy, Advocates for the Petitioner. Mr. Akhileshwar Sharma, Advocates for the Respondents.

CORAM: B. P. COLABAWALLA & FIRDOSH P. POONIWALLA, JJ. DATE: JUNE 11, 2025 P. C. 1. By this Petition, the Petitioner is aggrieved by the final assessment order dated 30th September 2021 (‘impugned order’) passed by Respondent No. 1 on the ground that the said assessment order has been passed in violation of the provisions of section 144B of the Act in as much as the said order has been passed without passing or issuing the draft assessment order as envisaged in section 144B(1)(xvi) of the Act and without Page 1 of 5 JUNE 11, 2025 Aswale ANJALI TUSHAR ASWALE Digitally signed by ANJALI TUSHAR ASWALE Date: 2025.06.12 13:10:54 +0530

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considering the reply to the show cause notice filed by the Petitioner in spite of only one days time being granted to it. 2. For the year under consideration, i.e. Assessment Year 2015- 2016, the Petitioner filed a return of income on 24th September 2015 declaring a total income of Rs. 1,14,00,220/-. A notice under section 148 of the Act was issued on 9th March 2020 reopening the assessment of the Petitioner. The reasons recorded for reopening relied on information received from DCIT Central Circle 8(1), Mumbai where a search and seizure action under section 132 of the Act was conducted in the case of JSK Group and related entities on 25th October 2016 and it was found that JSK Group had taken huge unsecured loans from various entities including the Petitioner. Subsequently, a notice dated 29th September 2020 was issued under section 143(2) read with section 147 and notices dated 1st September 2021, 3rd September 2021 and 10th September 2021 were issued under section 142(1) of the Act which were replied to on 21st September 2021. 3. A show cause notice was issued on 28th September 2021 granting an opportunity to the Petitioner to show cause why a proposed variation should not be made to complete the assessment. The Petitioner was granted time till 23.59 hours of 29th September 2021 to furnish a response. The Page 2 of 5 JUNE 11, 2025 Aswale

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Petitioner filed a reply on 29th September 2021 to the show cause notice making submissions on the proposed adjustment. 4. A final assessment order dated 30th September 2021 was passed by Respondent No. 1 under section 147 read with section 144B of the Act assessing the total income of the Petitioner at Rs. 2,48,64,987/- by making an addition of Rs. 1,34,64,767/- under section 68 of the Act. Further, paragraph 5 of the assessment order specifically mentions that the assessee has not responded to the show cause notice in spite of the Petitioner furnishing a reply on 29th September 2021. 5. The learned Counsel for the Petitioner submits that the final assessment order dated 30th September 2021 passed by the assessing officer is without jurisdiction in as much as the same has been passed without serving upon the Petitioner a draft assessment order as envisaged under section 144B(1)(xvi) of the Act. The issuance of a draft assessment order is mandatory in terms of the Faceless Assessment Scheme as incorporated in section 144B of the Act and the non-issuance of the draft assessment order is a jurisdictional defect. This being the case, the impugned order deserves to be set aside is the submission. Reliance is placed on the judgement of this Hon’ble Court in Rinku R. Rai v. ITO (454 ITR 33)(Bom). Further, the Page 3 of 5 JUNE 11, 2025 Aswale

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Petitioner submits that it has furnished a reply to the show cause notice on 29th September 2021 but the same has not been considered by Respondent No. 1 while passing the assessment order. Reliance is also placed on the judgement of the Gujarat High Court in Chatursinh Javanji Chavda v. ACIT (162 taxmann.com 466)(Guj). 6. In the Affidavit in reply, the Respondents have not disputed that the show cause notice proposing variations was issued on 28th September 2021 and time given to reply was till 29th September 2021 and the assessment order was passed on 30th September 2021. Mr. Akhileshwar Sharma, the learned Counsel for the Respondents, agrees that the show cause notices granted just one days time to the Petitioner to furnish its response. 7. In view of the above, it is apparent that the Respondents have acted in violation of the principles of natural justice by granting insufficient time of just 1 day to the Petitioner to respond to the show cause notice proposing variations. 8. Considering the aforesaid facts and circumstasnces, and without going into the merits of the case and other contentions, we deem it appropriate to set aside the assessment order. We, accordingly, hereby set Page 4 of 5 JUNE 11, 2025 Aswale

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aside the assessment order dated 30th September 2021 and remand the matter back to Respondent No. 1 to pass a fresh de novo order after providing an opportunity of hearing to the Petitioner. Such exercise shall be completed within 12 weeks from the date of uploading of this order. The Petitioner is directed to communicate this order to Respondent No. 2 who is the jurisdictional assessing officer within a period of seven days of it being uploaded. We clarify that we have not expressed any opinion on the merits of the matter. 9. With the aforesaid directions, the above Petition is disposed of. No order as to costs. 10. This order will be digitally signed by the Private Secretary/ Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order. [FIRDOSH P. POONIWALLA, J.] [B. P. COLABAWALLA, J.] Page 5 of 5 JUNE 11, 2025 Aswale