YASWI COMMERCIAL,GUWAHATI vs. INCOME TAX OFFICER, WARD - 1(3), GUWAHATI, GUWAHATI

Heard the representatives of both the parties and perused the materials on record.

The Ld. AR submitted that, the ld. AO did not provide personal hearing through video conferencing facility to the assessee despite such a request was made by the assessee and thus, the ld. AO did not provide opportunity to the assessee so as to make more effective submission in support of his claims. The Ld. AR also submitted that, the addition u/s 69C made by the ld. AO was on suspicion and on surmises only. The Ld. AR submitted that, all the necessary materials were submitted before the ld. AO during the assessment proceedings and the ld. AO also made enquiry from the supplier of the machine accordingly, the upholding the addition by the ld. CIT(A) was not justified. On the other hand, the Ld. DR supports the orders of the lower authorities.

We have observed that, the ld. Assessing Officer did not provide personal hearing to the assessee. No reasons also stated in the assessment order why the request for personal hearing was not provided to the assessee.

The ld. CIT(A) suggested the assessee to make submission which were to be submitted before the ld.AO. At the same time, the ld. CIT(A) has relied on the judgment of the Hon’ble Supreme Court of India in the case of State Bank of Patiala -Vs- S.K. Sharma and rejected the contention of the assessee that giving the personal hearing to him is compulsory. We observe that, the facts of the case as relied on by ld. CIT(A) are totally different than the case of the assessee. The case relied on by ld. CIT(A) was related to domestic enquiry in a disciplinary matter. Whereas, the instant case is related to payment/ recovery of income tax. The matter is a money related matter and there is a necessity to give every opportunity to the assessee to make Page 3 of 6 Yaswi Commercial -Vs- ITO, Ward-1 (3), Guwahati AY: 2018-19 submissions in support of his claims. Otherwise, there may be an irreparable loss to the assessee by paying of his money as income tax which is not the object of the Income Tax Act. The assessee must get every opportunity for defending his claims. The assessment of income tax must be free from any doubt and surmises.

We observe that, the assessee made a request before the ld. AO for a personal hearing through video conferencing as provided in the Income Tax Act. Section 144B (6)(viii) provides such a provision for granting of personal hearing where such a request comes from the assessee. The section provides as under— “ Where the request for personal hearing has been received, the income tax authority of relevant unit shall allow such hearing, through National Faceless Assessment Centre, which shall be conducted exclusively through video conferencing or video telephony, including use of any telecommunication application software which supports video conferencing or video telephony, to the extent technologically feasible, in accordance with the procedure laid down by the Board”.

We observe that, the aforesaid opportunity of personal hearing is a statutory opportunity to be provided to an assessee where such a request is received by the Revenue. Where such a request is received, it is mandatory for the income tax authority to provide personal hearing through video conferencing or video telephony as the case may be. It is mandatory because, the word “shall” has been used in that provision. That means, it is compulsory. We again see the relevant provision which says as – where the request for personal hearing has been received, the income tax authority of the relevant unit shall allow such hearing …………..

From the aforesaid provision as provided under section 144B(6)(viii) of the Act, it is clear that, the income tax authority is bound to allow personal hearing when such a request is made by an assessee.

We have already expressed our views that, the assessee must get every opportunity to substantiate his claims before the income tax authority. Hence, non-granting of personal hearing to the assessee by the ld. AO certainly deprived the assessee in substantiating his claims before the ld. AO. Further, the ld. AO has made addition on doubt. The ld. CIT(A) in his decision has stated as under---- “ After considering the various details including the mode of payment, the invoice and the method of accounting adopted by the assessee in respect of the said machine, the AO raised suspicion about the genuineness of the transaction in respect of acquisition of the machine by the assessee and held the same to be non-genuine, and completed the assessment by making an addition of Rs. 60,50,000/- u/s 69C of the Act”.

We observe that, the assessee reiterated his claims before the ld. CIT(A). The ld. CIT(A) finally dismissed the appeal of the assessee by observing that, the assessee failed to prove his case before both the lower authorities.

In view of the aforesaid, discussions, it is our considered opinion that, the assessment completed by the ld. AO by violating the provisions of section 144B(6)(viii) of the Act and addition was made on suspicion cannot be upheld. Hence, it would be proper to remand the case of the assessee to ld. AO for assessment afresh. Accordingly, we set aside the order of the ld. CIT(A) dated 12.09.2023 as well as the assessment order dated 27.05.2021 and remand the matter to ld. AO for reframing of the assessment. We direct ld.AO to reconsider the case of the assessee after giving the assessee an opportunity of being heard. Thus, we allow the appeal of the assessee for statistical purposes only. Page 5 of 6 Yaswi Commercial -Vs- ITO, Ward-1 (3), Guwahati AY: 2018-19 17. Since, we remand the case to ld. AO due to violation of the provision of section 144b(6)(viii) of the Act, we think it proper not to adjudicate the addition made u/s 69C of the Act separately.

In the result, the appeal of the assessee is allowed for statistical purposes only.