Case Law Details
Pankaj s/o Roshan Dhawan Vs National e-Assessment Centre (Bombay High Court)
HC held that we are satisfied that the assessment order dated 14.05.2021 has been passed without granting proper and meaningful opportunity to the petitioner to respond to the show cause notice. It is not in dispute that as per show cause notice dated 10.04.2021 the petitioner was called upon to submit his response by 4.00 p.m. of 13.04.2021. The petitioner on 12.04.2021 sought time to furnish his response on medical grounds. A request for personal hearing was also made while seeking time till 21.04.2021. It is further not in dispute that on 21.04.2021 the petitioner did file his reply to the show cause notice. Paragraph 5 of the assessment order dated 14.05.2021 indicates that the concerned Authority preferred to wait only till 20.04.2021 and thereafter proceeded to pass the assessment order. Despite the fact that on 21.04.2021 the petitioner had filed reply to the show cause notice, the same has not been taken into consideration though the assessment order was passed much later on 14.05.2021. In other words, if the Authority was to pass the assessment order on 14.05.2021 the material already on record in the form of petitioner’s reply dated 21.04.2021 ought to have been considered before passing the assessment order. Thus, despite the petitioner responding to the show cause notice much prior to issuance of the assessment order, there is no consideration of the reply given by the petitioner to the show cause notice. A mere statement now in the affidavit in reply that the petitioner’s response to the show cause notice did not contain any new or material fact cannot be accepted as such reason/consideration is not found in the impugned assessment order. The validity of the impugned assessment order would have to be judged from its contents and the same cannot be supported by extraneous material in the form of affidavit in reply. Hence for this reason the challenge to the assessment order dated 14.05.2021 is liable to succeed.
It is true that an alternate remedy by way of statutory appeal is available to the petitioner. However in view of the fact that it is apparent that the assessment order has been issued without granting due and proper opportunity to the petitioner, we are not inclined to relegate the petitioner to avail that statutory remedy. We may also state that the petitioner has challenged the provisions of Section 144-B(7)(viii) and (xii) and provisions of Section 144-B(1)(xvi)(b) and (c) of the said Act as being violative of Article 14 of the Constitution of India. Since we are not required to enter into the merits of the assessment order, such challenge is kept open for being raised at an appropriate stage, if so advised.
FULL TEXT OF THE JUDGMENT/ORDER OF BOBMAY HIGH COURT
Rule. Rule made returnable forthwith. Heard learned counsel for the parties in view of notice for final disposal issued earlier.
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