Manishkumar Tulsidas Kaneriya Vs ACIT (Gujarat High Court)
Section 144, contemplates providing the assessee an opportunity of being heard before making assessment. The First Proviso mentions that such opportunity shall be given by the assessing officer by serving notice to the assessee, mentioning date and time for completion of the assessment to the best of his judgment. As per the Second Proviso, the opportunity will not be necessary in a case where the notice under section 142(1) has been issued prior to making of the assessment in this section.
In all the aforesaid cases, the undisputed fact situation obtained is that while passing the assessment orders, no notice was served upon the petitioner assessee in respect of any assessment years nor any notice was served before the competent authority proceeded to pass penalty order under section 271 of the Act. In none of these case Notice under Section 142(1) has been issued prior to the assessment.
As section 144B (6)(ii) of the Act contemplates, every notice or order or any other electronic communication shall be delivered to the addressee being the assessee by way of placing an authenticated copy in the registered account of the assessee or by sending authenticated copy or by uploading the authenticated copy on the mobile app of the assessee.
It is the case of the petitioner that in neither of the modes above, any notice was received by him. It was only when the petitioner opened the portal to check the demand for assessment year 2021-2022, he knew about the impugned orders of re-assessment and the consequential penalty orders.
When the assessment under section 153 read with section 144 of the Act have been done by the assessing officer without giving the petitioner assessee an opportunity of being heard in terms of and within the meaning of section 144 of the Act, the orders are liable to be set aside on the said ground of not giving of opportunity and resultant breach of principles of natural justice. The proper course would be to remit back the cases to the assessing officer to be proceeded with from the stage of notice which shall be served upon the petitioner in each case.
In the aforesaid view, all the petitions are allowed. Assessing Officer shall undertake the exercise afresh of giving opportunity of hearing to the petitioner assessee in respect of each cases as contemplated under section 144 of the Act and shall complete the assessment proceedings right from the stage of issuing notice within a period of three months from the date of receipt of this order.
FULL TEXT OF THE JUDGMENT/ORDER OF GUJARAT HIGH COURT
All these Special Civil Applications involve similar facts and identical issues, except that the petitions relate to different assessment years, in that view, they were heard together to be treated for final disposal by this common order.
1.1 Heard learned advocate Mr. Darshan R. Patel for the petitioner and learned advocate Mr. Varun K. Patel for the respondent Assistant Commissioner of Income Tax, Central 1, Rajkot, in each of the petitions.
2. What is prayed in the respective petitions is to set aside assessment order dated 29.09.2021 passed by the Assessing Officer under Section 153C read with Section 144 of the Income Tax Act, 1961. Also under challenge are the orders dated 06.01.2022 as well as dated 09.02.2022 passed under Section 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), whereby the penalty came to be imposed on the petitioners.
3. As stated, while the petitioner is common in all the petitions, the impugned orders pertain to different assessment years, the details of which are given in the tabular form,
