The court emphasized the importance of providing a personal hearing to the assessee as per the provisions of Section 144B(6)(vii) and (viii) of the Income Tax Act, 1961.

JUDGMENT

[Physical Hearing/Hybrid Hearing (as per request)]

Rajiv Shakdher, J. (Oral)

1. We had heard this matter at some length on the previous date i.e., 16.01.2023.

2. After hearing the counsel for the parties, we had broadly noted the grievance at hand, articulated on behalf of the petitioner.

3. Before we proceed further, we may note, that a typographical error has crept in paragraph 7 of the order dated 16.01.2023. The section referred to therein is Section 144B(1)(xv) of the Income Tax Act, 1961 [in short 'the Act'], whereas, the Section to which reference ought to have been is Section 144B(1)(xvi)(a) of the Act.

3.1. The order dated 16.01.2023 shall stand corrected to that extent.

3.2. The relevant parts of the said order [as corrected] are set forth hereafter:

2. The following substantive reliefs have been sought by the petitioner in the writ petition:

"(a) That this Hon'ble Court may issue a writ in the nature of certiorari for quashing of notice u/s 133(6) dated 05.12.2022 of the Act being illegal, bad in law and without jurisdiction.

(b) That this Hon'ble Court may issue a writ in the nature of Certiorari for quashing of proposal u/s 144B(1)(xv) dated 13.12.2022 of the Act for want of service to the petitioner.

(c) That this Hon'ble Court may issue a writ in the nature of certiorari for quashing of assessment order u/s 144B dated 15.12.2022 being illegal, bad in law and without jurisdiction."

3. Besides this, the petitioner also seeks issuance of a writ of mandamus qua the respondents/revenue to pass an assessment order, albeit after being given a hearing.

3.1 In addition thereto, the petitioner seeks a stay on the operation of the assessment order dated 15.12.2022 which is, in any event, is assailed as notice above. [See prayer clause (c)]. This relief is, really, interim in nature.

4. Although the petitioner concedes, that various notices were issued, as was revealed to him from the designated portal, it is his contention, that the e-mails sent to him were somehow directed to the spam folder.

5. According to the petitioner, no real-time alert via SMS was given, which is the usual and normal practice.

6. Mr Vikas Jain, who appears on behalf of the petitioner, says that even the show-cause notice dated 09.12.2022 proposing variation in the income was not served on the petitioner. The difficulty with the show-cause notice is the same, as noticed above, with regard to the previous notices.

7. Mr Jain also submits that, in any event, since it was a faceless assessment, under the provisions of Section 144B(1)(xvi)(a), the Assessing Officer (AO) was required to pass a draft assessment order.

7.1. In support of this plea, our attention has been drawn by Mr Jain to the communication dated 05.01.2023, in response to the request made for being furnished the draft assessment order. [See page 84 of the case file]. The relevant extract of the said communication is set forth hereafter:

"F. No. ITO WARD- 35(5)/2022-23/258 Dated: 05/01/2023

To,

Sh. Shubhank Garg,

137, B Pocket A,

Dilshad Garden,

New Delhi-110095

Sir,

Sub: Request for certified copy of the Draft Assessment Order reg.

In the case of Sh. Shubhank Garg, (PAN:CERPG7503R) for the A.Y. 2021-22 the assessment was finalized as per variation sent to the assessee in Show cause notice.

As per ITBA portal the assessment proceedings completed by the Facless Assessment Unit and as per portal the draft assessment order sent to the assessee in show cause notice on 09.12.2022 with DIN NO. ITBA/AST/F/144(SCN)/2022- 23/1047911207(1).

Yours Faithfully
s/d
(Lal Babu Sah)
Income Tax Officer,
Ward 35(5), New Delhi

Income Tax Officer
Ward-35(5), Room No.908,
E-2 Block, Civic Centre,
New Delhi-110002"

8. Prima facie, it appears that the draft assessment order has not been passed in this case.

9. Ms Easha Kadian, who appears on behalf of the respondents/revenue, says that she will return with instructions, inter alia, as to whether or not a draft assessment order has been passed in the instant case.

10. Apart from