Takshila Educational Society, V. The Assessment Unit, Income Tax Department,

CWJC/6380/2024

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The case involves Takshila Educational Society, represented by its Administrative Officer, Gopichandra Prasad, challenging an assessment order passed by the Income Tax Department without an oral hearing. The petitioner argued that the assessment was made without affording a reasonable opportunity of being heard, relying on a precedent from the Wealth Tax Act. However, the court distinguished this case from the cited precedent, noting that under the Income Tax Act's faceless assessment scheme, the assessee must explicitly request an oral hearing. The court also referenced the availability of an appeal where the facts can be argued in person, and the appellate authority can hear the assessee.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 747201 (HC-PATNA)
• Appeal Type: Others
• Pronouncement Date: 22-04-2024
• Assessment Year: misc
• Other Referred Cases: Commissioner of Wealth- Tax Vs. Sri Jagdish Prasad Choudhary, State of H.P & Ors. v. Gujarat Ambuja Cement Limited & Anr.
• Laws Referred To: Wealth Tax Act, Income Tax Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: ARCHANA SINHA
• Assessee Lawyers: AJAY RASTOGI; SMRITI SINGH; KALPANA RASTOGI
• Keywords: Faceless assessment; Natural Justice; Waiver; Oral hearing
• Section: 18(2); 144B(vii)

Judgement Text

"IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6380 of 2024 ====================================================== Takshila Educational Society, Priyadarshi Nagar, West Bailey Road, Patna- 801503 through its Administrative Officer, Gopichandra Prasad, aged about 85 years, Male, Son of Late Ram Khelawan Prasad, Permanent Resident of Jay Prakash Lane (Machhali Gali), New Jakkanpur, Phulwari, Patna- 800001, P.O.- G.P.O., P.S.- Jakkanpur, District- Patna. ... ... Petitioner/s Versus The Assessment Unit, Income Tax Department, National Faceless Assessment Centre, New Delhi. ... ... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Ajay Kumar Rastogi, Sr. Advocate Ms. Smriti Singh, Advocate Ms. Kalpana Rastogi, Advocate For the Respondent/s : Mrs. Archana Sinha, Sr. SC ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 22-04-2024 The petitioner is aggrieved with the assessment order dated 22.03.2024, passed without affording an opportunity of hearing. There is an appeal provided from the order, which has not been availed of. 2. The learned Senior Counsel for the petitioner only seeks for a remand so that an opportunity be afforded for a proper hearing. The learned Senior Counsel would also rely on a Full Bench decision of this Court in Commissioner of Wealth- Tax Vs. Sri Jagdish Prasad Choudhary, (1995) 211 ITR 472X Patna High Court CWJC No.6380 of 2024 dt.22-04-2024 2/5 (Pat). Therein, the specific provision on which the dictum was laid was Section 18 (2) of the Wealth Tax Act, which reads as under: “18 (2) No order shall be made under sub- section (1) unless the person concerned has been given a reasonable opportunity of being heard. 3. It was held by the Full Bench that the word “heard” occurring in Section 18(2) of the Act means to be heard “orally” and not a mere consideration of the case as made out in the written representation. Incidentally, it was also examined whether such an oral hearing can be given only on the request of the person concerned or whether under the scheme of the Act, there is an implied obligation of the concerned authority to offer an opportunity of oral hearing. It was found on the scheme of the Wealth Tax Act, specifically sub-Section (2) of Section 18 that even without a request there is an implied obligation on the authority. 4. Juxtaposed with the above provision, we have to consider Section 144B(vii), which reads as under: “(vii) the assessee or any other person, as the case may be, shall file his response to the notice referred to in clause (vi), within the time specified therein or such time as may be extended on the Patna High Court CWJC No.6380 of 2024 dt.22-04-2024 3/5 basis of an application in this regard, to the National Faceless Assessment Centre;” 5. Hence, under the scheme of the Income Tax Act, specifically after the faceless assessment was brought into force, a request has to be made for an oral hearing. There is a specific option provided, which has to be ticked in the affirmative, to make the request while uploading the objection. Unless the request is made, the faceless assessment would be concluded without an oral hearing, which again is as per the scheme of the Act. We do not think that the dictum of the Full Court applies here. We also notice that there is a provision for appeal where all the facts can be argued in person. The appellate authority also has sufficient power to get a report from the Assessing Officer, after affording an opportunity of hearing before the Assessing Officer. 6. We also notice the contours of the jurisdiction under Article 226 of the Constitution of India to interfere with appellable orders laid down by the Hon’ble Supreme Court in State of H.P & Ors. v. Gujarat Ambuja Cement Limited & Anr.; (2005) 6 SCC 499. It has been held that if an assessee approaches the High Court without availing the alternate Patna High Court CWJC No.6380 of 2024 dt.22-04-2024 4/5 remedy, it should be ensured that the assessee has made out a strong case or that there exists good grounds to invoke the extraordinary jurisdiction. While reiterating that Article 226 of the Constitution confers very wide powers on the High Court, it was clarified that nonetheless the remedy of writ is an absolutely discretionary remedy. The High Court, hence, can always refuse the exercise of discretion if there is an adequate and effective remedy elsewhere. The High Court can exercise the power only if it comes to the conclusion that there has been a breach of principles of natural justice or due procedure required for the decision has not been adopted. The High Court would also interfere if it comes to a conclusion that there is infringement of fundamental rights or where there is failure of principles of natural justice or where the orders and proceeding are wholly without jurisdiction or when the vires of an Act is challenged. The plea made of no oral hearing afforded has to be considered in the context of the option not having been exercised; which amounts to a waiver. 7. We, however, reserve the liberty of the petitioner to approach the appellate authority. The period during which the writ petition, was pending, from 10.04.2024, till today, shall not Patna High Court CWJC No.6380 of 2024 dt.22-04-2024 5/5 be reckoned as delay. 8. The writ petition stands dismissed. shivank/- (K. Vinod Chandran, CJ) (Harish Kumar, J) AFR/NAFR NAFR CAV DATE NA Uploading Date 23.04.2024. Transmission Date NA "