A breach of natural justice occurs when an assessment order is finalized before the noticee's response deadline, invalidating the order.

JUDGMENT

[Court hearing convened via video-conferencing on account of COVID-19]

Rajiv Shakdher, j. (Oral)--Via this writ petition, challenge has been laid to the assessment order, dated 22.04.2021, passed under Section 143 (3) read with Section 144B of the INCOME TAX ACT , 1961 (in short "the Act"). The impugned assessment order concerns the assessment year (in short `AY') 2018-2019. Besides this, challenge is also laid to the notice of demand issued under Section 156 of the Act and the notice for initiation of penalty proceedings issued under Section 274 read with Section 270A of the Act of even date, i.e., 22.04.2021.

2. On the previous date, i.e., 10.05.2021, while issuing notice in the matter, we had recorded the following:

"2. Mr. Ajay Vohra, learned senior counsel, who appears on behalf of the petitioner, says that there has been a breach of principles of natural justice. 2.1. According to Mr. Vohra, the show cause notice-cum-draft assessment order dated 18.04.2021 required the petitioner to submit its response by 23:59 hours on 22.04.2021.

3. It is the petitioner's claim that the respondent, in breach of its own timeline, passed an assessment order under Section 143 (3) read with Section 144B of the INCOME TAX ACT , 1961, (in short 'the Act') concerning assessment year (AY) 2018-2019 on 22.04.2021 at 14:11 hours.

4. The petitioner avers, that upon becoming aware of the same, it placed its grievance before the revenue via the e-filing portal on 22.04.2021, in which, it, inter alia, stated that although at about 22:00 hours, it had tried to upload a response to the aforementioned show cause notice-cum-draft assessment order, the same could not be uploaded.

5. Prima facie, it appears that there has been a breach of principles of natural justice.

6. Since Mr. Ruchir Bhatia, who appears on behalf of the revenue, seeks an accommodation to revert with instructions, list the matter on 19.05.2021.

7. In the meanwhile, there shall be a stay on the operation of the impugned assessment order dated 22.04.2021, as well as the notice of demand issued under Section 156 and the notice initiating penalty proceedings under Section 270A of the Act.

8. This order will operate till further orders of the court.

9. In case, instructions are received by Mr. Bhatia to resist the petition, a counter-affidavit will be filed before the next date of hearing."

3. Mr. Ruchir Bhatia, who appears on behalf of the respondent/revenue, has returned with instructions. He says that his instructions are to resist the writ petition. To be noted, though, counter-affidavit has not been filed, Mr. Bhatia chooses to resist the petition based on the record presently available with the Court.

3.1. We have queried Mr. Bhatia as to, whether the facts adverted to in our order dated 10.05.2021, are disputed. Mr. Bhatia says that though the facts stated therein are not disputed, the relief sought in the writ petition is resisted on two grounds:

(i) First, the petitioner has an alternative remedy available to it under the Act.

(ii) Second, on the previous occasions, that is, prior to the issuance of the show cause notice-cum-draft assessment order dated 18.04.2021, several opportunities were given to the petitioner.

4. Having heard Mr. Ajay Vohra, learned senior counsel, who appears for the petitioner and Mr. Bhatia, we are of the view that the impugned orders, referred to hereinabove, cannot be sustained.

4.1. The reason being that, although, via the show cause notice-cum-draft assessment order dated 18.04.2021, the petitioner was given leave to respond to the same by 23.59 hours on 22.04.2021, the impugned assessment order was passed on 22.04.2021 at 14.11 hours, i.e., much before the time to file the response elapsed.

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