The word 'may' in the e-assessment Scheme must be read as 'shall', making it mandatory for the authority to afford an effective opportunity of hearing prior to finalizing the assessment.

JUDGMENT

(Prayer: Writ Petitions filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records in ITBA/AST/S/143(3)/2020-21/1031020916 (1) dated 26.02.2021 on the file of the respondent No.2 relating to the Assessment Year 2018-19 and quash the same for being ex-facie, illegal, arbitrary, against the principles of natural justice and in violation to the E-assessment Scheme, 2019 notified vide Notification No.61/2019/F.No.370149/154/2019-TPL dated 12.09.2019 with further direction to grant opportunity for personal hearing before passing the fresh orders.)

1. The petitioner is an individual, who has challenged an order of assessment for assessment year (AY) 2018-19 on the ground that the assessment is ex-facie illegal, arbitrary and against the principles of natural justice apart from being in gross violation of e-assessment Scheme, 2019 notified under Notification No.S.O.3264(E) [No.61/2019 (F.No.370149/154/2019-TPL)] dated 12.09.2019, amended by Notification S.O.2745 (E) [No.370149/154/2019-TPL] dated 13.08.2020. As a consequence, he prays that an opportunity be granted by the Assessing Authority for personal hearing prior to passing of fresh orders.

2. Two grounds have been raised and specifically argued by the learned counsel for the petitioner. The first is that the impugned order of assessment deals with an addition on account of alleged suppression of sales at paragraph 3 thereof. My attention is drawn to show cause notice dated 20.01.2021, which raises three issues as proposals. The first is in regard to investment in immovable properties being brought to tax as an unexplained investment, the second is an addition to capital account on the ground that there were certain infusions of capital out of unexplained/undisclosed sources and the third is the proposed addition to total income under the head 'income from other sources'.

3. It is clear, on a comparison of the assessment order with the show cause notice issued, that the issue of suppression of sales has not been put to the assessee for rebuttal at all. Thus, this ground is answered in favour of the assessee.

4. The second argument is as regards the lack of personal hearing afforded to the petitioner. The defence of the respondent is that though admittedly, the assessee had sought an opportunity of personal hearing in his response dated 26.01.2021 to show cause notice dated 20.01.2021, the grant or otherwise of such opportunity was subject to the discretion of the authority.

5. In this connection, my attention is drawn to Notification, being Notification 61 dated 12.09.2019, as amended by Notification No.60 dated 13.08.2020, especially clause (5), in terms of which, e-assessments have been finalised. The relevant portion of Clause (5) reads as follows:

5. Procedure for assessment. — (1) The assessment under this Scheme shall be made as per the following procedure, namely: —

.............

(xvi) the National e-assessment Centre shall examine the draft assessment order in accordance with the risk management strategy specified by the Board, including by way of an automated examination tool, whereupon it may decide to, —

(a) finalise the assessment as per the draft assessment order and serve a copy of such order and notice for initiating penalty proceedings, if any, to the assessee, alongwith the demand notice, specifying the sum payable by, or refund of any amount due to, the assessee on the basis of such assessment; or

(b) provide an opportunity to the assessee, in case a modification is proposed, by serving a notice calling upon him to show cause as to why the assessment should not be completed as per the draft assessment order; or

(c) assign the draft assessment order to a review unit in any one Regional e-assessment Centre, through an automated allocation system, for conducting review of such order.

.................'

6. I have had an occasion to consider an identical issue in W.P.No.9900