JUDGMENT :

SONIA GOKANI, J.

1. The petitioner is before this Court under Article 226 of the Constitution of India seeking to challenge the action of the respondent-authority in the following factual background:

1.1. The petitioner is in the business of real estate development and has filed its return of income on 13.09.2018 offering Rs. 64,68,084/- as tax on income.

1.2. Its case was selected for the scrutiny and a notice dated 22.09.2019 under Section 143(2) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) read with Rule 12E of the Income Tax Rules, 1962 (hereinafter referred to as ‘the Rules’) was issued. The respondent, on 14.10.2020 issued a communication to the petitioner that the assessment shall be completed in accordance with the Faceless Assessment Scheme, 2019.

1.3. On 07.11.2020, notice in the form of questionnaire came to be issued under Section 142(1) of the Act requesting the petitioner to submit various details in the annexure appended to the notice. A further reminder was addressed to the petitioner on 18.12.2020 by giving reference of the notice dated 17.11.2020. The petitioner, on 25.12.2020, attempted to send all the details which were sought. Further details were called for on 29.12.2020.

1.4. It is averred that before the petitioner could submit the details sought for, the respondent on 06.02.2021 straightway passed the order of assessment without issuance of show cause notice-cum-draft order by adding sum of Rs. 1,18,87,449/-.

2. This Court (Coram: Ms. Bela M. Trivedi, J. Her Ladyship then was and Dr. Ashokkumar C. Joshi, J.) while issuing notice on 25.08.2021 passed the following order:

“1. The learned senior advocate Mr. S.N. Soparkar for learned advocate Mr. B.S. Soparkar for the petitioner, pressing into service the provisions of the Scheme namely the E-assessment Scheme, 2019, submits that the impugned order of assessment suffers from gross violation of the principles of natural justice as well as the violation of the provisions of the Scheme inasmuch as the draft order was never served to the petitioner before passing the impugned order. According to him, though the petitioner has preferred an appeal against the said impugned order of assessment, the appellate authority would not have any jurisdiction to go into the said issue under section 251 of the IT Act. However, he submits that the petitioner shall withdraw the said appeal within a week and the liberty be reserved to the petitioner to revive the said appeal in case the present petition is not entertained on the ground of existence of an alternative remedy.

2. Though the said contention with regard to noncompliance of the provisions of E-assessment Scheme, 2019 has not been raised in the petition, the said issue being a legal issue, Mr. Soparkar was permitted to raise the same during the course of his arguments.

3. In view of the above, notice is issued to the respondent, returnable on 6th September 2021, on the condition that the petitioner shall withdraw the appeal filed against the impugned order of assessment within a week. Considering the request of learned senior advocate Mr. Soparkar, it is clarified that in case the present petition is not entertained on the ground of existence of the alternative remedy, the petitioner shall be at liberty to move the concerned appellate authority for the revival of the appeal.”

2.1. Notice was duly served and on 13.09.2021, there was an insistence on the part of the petitioner to protect the interest of the assessee by way of interim relief and this Court passed the followed order:

“1. Learned advocate, Mr. B.S. Soparkar on instructions has submitted that pursuant to the order passed by this Court on 25.08.2021, the petitioner has withdrawn the appeal which is pending before the Commissioner of Income Tax (Appeals).

2. We have heard the learned advocate, Mr. B.S. Soparkar appearing for the petitioner and learned senior standing counsel, Ms. Mauna Bhatt appearing for the department on the interim re