Assessment under Section 153 is invalid if the Assessee does not have a chance to be heard
Fact and issue of the case
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.
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.
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.
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,
|Sr. No.||Special Civil Application No.||Assessment Year||Order Date|
|1.||7614 of 2022||2013-14||29.09.2021|
|2.||7655 of 2022||2019-20||29.09.2021|
|3.||7624 of 2022||2018-19||29.09.2021|
|4.||7629 of 2022||2017-18||29.09.2021|
|5.||7623 of 2022||2016-17||29.09.2021|
|6.||7627 of 2022||2015-16||29.09.2021|
|7.||7626 of 2022||2014-15||29.09.2021|
Noticing the basic facts from the pleadings of Special Civil Application No. 7614 of 2022 as representative facts, it is the case of the petitioner that the petitioner had been regularly assessed to tax by the Income Tax Office, Rajkot for the assessment year 2013-14, to which the said petition relate to. The petitioner had filed return of income.
On 29.09.2021, the respondent Assessing Officer passed assessment order under section 153C read with Section 144 of the Act. Thereafter, orders dated 06.01.2022 and 09.02.2022 under section 271(1)(c) of the Act was passed levying penalty for the year under consideration.
It is the case of the petitioner that the assessment order as well as orders of penalty were never served upon him. It was sated that on 25.03.2022, the petitioner received an email communication from the income tax authorities with demand for assessment year 2021-22 was raised in his case. The petitioner averred that when he opened the portal to check the demand for the said assessment year 2021-22, he came to know that the assessment order under section 153C read with section 144 of the Act as well as penalty orders, as above were passed in respect of assessment year 2013-14 and other assessment years.
Observation of the court
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. The impugned order dated 29.09.2021 passed in respect of assessment year 2013-14 in case of first captioned petition and in respect of other such years in the other respective petitions under section 153C read with section 144 of the Act are set aside. Also set aside are the orders dated 06.01.2022 and 09.02.2022 in each cases imposing penalty.
The 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.
All the petitions are allowed in the aforesaid terms.
In the result, appeal of the assessee is allowed and ruled in favour of the assessee
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