JUDGMENT :

BHARGAV D. KARIA, J.

1. Heard learned advocate Mr. Hardik Vora for the petitioner and learned Senior Advocate Mr. M.R. Bhatt for M.R. Bhatt & CO. for the respondents.

2. By this petition under Article 226 of the Constitution of India, the petitioner has prayed to set aside the assessment order dated 23.09.2021 passed under Section 143(3) read with Section 144B of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) and further prayed to stay the assessment order/or demand of Rs. 1,01,48,95,580/- and consequent penalty proceedings.

3. Brief facts of the case are that the petitioner is engaged in the business of refining and trading of different kind of edible oil from crude and raw cotton wash oil.

3.1) The petitioner filed return of income declaring total income at Rs.1,97,88,000/-.

3.2) The case of the petitioner was taken under scrutiny assessment under the E-assessment Scheme, 2019 and notice under section 143(2) of the Act was issued.

Further notices under section 142(1) of the Act along with detailed questionnaire were also issued. In response to such notices, the petitioner assessee submitted his reply from time to time.

3.3) It is the case of the petitioner that thereafter, vide show cause notice dated 12.05.2021, draft assessment order was issued wherein addition of Rs. 1,17,05,44,981/- was proposed on various grounds.

3.4) Pursuant to the show cause notice, the petitioner submitted a detailed reply dated 25.05.2021 and requested for personal hearing through video conference.

3.5) On 01.09.2021, the Assessing Officer has gave the personal hearing through video conference to the petitioner.

3.6) It is the case of the petitioner that subsequent to the personal hearing, the Assessing Officer made further inquiry and issued notice under section 133(6) to one Kunal Exports and Infrastructure and Gurdas Agro Private Limited on 08.09.2021 and 15.09.2021 asking confirmation of accounts, sample bills and voucher etc. The Assessing Officer also issued notice to SBI Bank for verifying genuineness of bank statement.

3.7) It is the case of the petitioner that respondent authority passed the final assessment order dated 23.09.2021 making huge addition of Rs. 92,42,86,979/- without providing opportunity of hearing to the petitioner on the basis of new material which was never mentioned in the draft assessment order or any of the earlier notices.

3.8) Being aggrieved by such action of the respondent, the petitioner has preferred the present petition.

4. Learned advocate Mr. Hardik Vora for the petitioner submitted that though the petitioner has given all the details as required by the Assessing Officer, the Assessing Officer without affording any opportunity of hearing to the petitioner passed the assessment order and therefore, there was breach of principles of natural justice.

4.1) It was submitted that as per section 144B of the Act, the Assessing Officer has the power to prepare draft assessment order based on existing material and can request to other units for further inquiry or verification or technical assistance and on the basis of such inquiry and verification, the Assessing Officer prepares the draft assessment order as per the provisions of clause (xiv) of the Act.

4.2) It was submitted that as per the provisions of clause (xvi), the assessee is to be given opportunity of being heard if there is proposed variation prejudicial to the interest of the assessee in the draft assessment order. The review unit under clause (xvii) or assessment unit under clause (xx) may suggest variation to draft assessment order and in case such variation are prejudicial to the interest of assessee as per clause (xviii) or (xxi) read with clause (xvi)(b), opportunity of hearing is required to be given to the petitioner. However, the assessee has not received any final draft assessment order for opportunity of being heard as per clause (xxi) read with clause (xvi)(b) even when detailed inquiry was being carried out and inquiry was made the