The central legal point established in the judgment is the statutory right of the petitioner to a personal hearing under Section 144B(7)(vii) of the Income Tax Act, 1961, and the requirement for the Assessing Officer to consider the petitioner's request for a personal hearing.

JUDGMENT

Rajiv Shakdher, J. - Cm APPL. 19402/2021

1. Allowed, subject to just exceptions.

W.P.(C) 6126/2021 and CM APPL. 19401/2021 [Application filed on behalf of the petitioner seeking stay on the impugned assessment order and subsequent proceedings]

2. Issue notice.

3. Mr. Sanjay Kumar accepts service on behalf of respondent no.1. Likewise, Mr. Gurtejpal Singh accepts service on behalf of Mr. Ravi Prakash, counsel for respondent no.2/UOI.

3.1 To be noted, respondent no.1 is the contesting party in the matter.

4. Mr. Kumar says that, in view of the directions that we intend to pass, he does not wish to file a counter-affidavit/reply and will argue the matter on the basis of the record, presently, available with the Court.

5. Thus, with the consent of the counsel for the parties, the matter is taken up for final hearing and disposal at this stage itself.

5.1. Via the present petition, the petitioner has assailed the assessment order dated 27.05.2021, principally, on the ground that it has been passed in breach of the principles of natural justice.

5.2 To be noted, the impugned assessment order concerns the assessment year ('AY') 2018-2019.

6. Briefly, the record shows that the petitioner was served with a show cause notice-cum-draft assessment order on 09.03.2021. Via the said show cause notice-cum-draft assessment order, the petitioner was granted time till 23:59 hours on 12.03.2021 to file a response qua the same. It appears that, on 12.03.2021, the petitioner requested for accommodation till 26.03.2021, to respond to the said notice.

6.1 Apparently, the petitioner [despite having made a request for accommodation till 26.03.2021] filed a reply to the aforesaid show cause notice-cum-draft assessment order on 17.03.2021. Apart from anything else, in the said reply, the petitioner had made a request for being accorded a personal hearing in the matter before passing the assessment order.

6.2. Concededly, the Assessing Officer (in short 'AO') passed the impugned assessment order dated 27.05.2021 without according a personal hearing to the petitioner.

7. It is the submission of Mr. Jorawar Singh Bhasin, who appears for the petitioner, that not only was petitioner deprived of a personal hearing in the matter but also the abovementioned reply, filed on 17.03.2021, was not considered by the Assessing Officer (AO) while passing the impugned assessment order.

8. On the other hand, Mr. Kumar says that, a perusal of the impugned assessment order would show that, the reply to the show cause notice-cumdraft assessment order was considered, although, a personal hearing was not granted to the petitioner. It is Mr. Kumar's contention that, since a reply had been filed and the same was considered, the outcome would have been the same even if a personal hearing had been granted by the AO. In other words, according to Mr. Kumar, there was no breach of the principles of natural justice, in the instant case, on account of personal hearing not being granted.

9. Having heard the learned counsel for the parties, we are of the view that the failure to accord a personal hearing to the petitioner was fatal in this particular case. The petitioner had a statutory right to personal hearing under Section 144B(7)(vii) of the Income Tax Act, 1961.

9.1. We have dealt with this very issue in Sanjay Aggarwal vs. National Faceless Assessment Centre, Delhi,2021 127 taxmann.com 637(Delhi). The relevant observations made in the said judgment are extracted hereafter:

"11.4. A careful perusal of clause (vii) of Section 144B (7) would show that liberty has been given to the assessee, if his/her income is varied to seek a personal hearing in the matter. Therefore, the usage of the word "may?, to our minds, cannot absolve the respondent/revenue from the obligation cast upon it, to consider the request made for grant of personal hearing. Besides this, under sub-clause (h) of Section 144B (7)(xii) read with Section 144B (7) (viii), the respondent/revenue has been given the power to fr