[2] THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IS A NON

EST ORDER AS PER SECTION 144B (9) OF THE INCOME TAX ACT

It is humbly submitted before this Hon’ble Court that the order passed by the Assessing Officer
under section 143(3) of the Act is a non est order as per section 144B (9) of the Income Tax Act
since it was not passed in conformity with the requirements of the Faceless Assessment Scheme,
2019, forming part of section 144B of the Act. Firstly, the order passed under section 143(3) of
the Act is not in conformity with provisions of section 144B (9) of the Act. Secondly, no show
cause notice has been issued to the assessee before passing the assessment order. Thirdly, order
passed is in contravention of principle of natural justice.

2.1 THE ASSESSMENT ORDER PASSED IS NOT IN CONFORMITY WITH PROVISIONS

OF SECTION 144B (9) OF THE INCOME TAX ACT.

It is submitted that the order passed by the assessing officer under section 143(3) of the Act is
liable to be quashed as subsection (9) of section 144B read as under:-

" Notwithstanding anything contained in any other provision of this Act, assessment made under
sub-section (3) of section 143 or under section 144 in the cases referred to in sub-section (2)
other than the cases transferred under sub-section (8), on or after the 1st day of April, 2021,
shall be non est if such assessment is not made in accordance with the procedure laid down
under this section."

It has been observed in the case of Sanjay Aggarwal Vs. National Faceless Assessment Centre,
that a look at relevant provisions of section 144B of the Ac would give a sense as to why
legislature has provided personal hearing in the matter in a case where variation is proposed in
the orders of draft assessment, final draft assessment or revised draft assessment. Opportunity is
made available to assessee by serving a notice calling upon him to show-cause and assessee or
his representative is allowed to request for personal hearing to present oral submissions on its
case before income tax authorities in any unit. Taking stock of the situation, Delhi High Court
had concluded that it was incumbent on the revenue to accord personal hearing to the petitioner
and its lack would result in setting aside impugned order . The present case shows that revenue
has passed the assessment order without application of mind, without considering the reply filed
by petitioner dated 12th December, 2021 and without considering the request for personal hearing
also sought by petitioner.

Reliance is also placed on the decision in the case of Lemon Tree Hotels Limited Vs. National
Faceless Assessment Centre, Delhi & Anr, wherein it was held that prima facie once an assessee
requests for a personal hearing, the officer in-charge, under the provisions of clause (viii) of
section 144B (7), would have to ordinarily grant personal hearing since statute itself makes
provision for personal hearing, the respondent revenue cannot veer away from the same.

In YCD Industries Vs. National Faceless Assessment Centre, Delhi, the High Court has observed
as under:- The statute [i.e. Section 144B(1)(xiv), (xv), (xvi)b and (xxii)] provides for issuance of
a show cause notice-cum-draft assessment order, and an opportunity to the petitioner/assessee to
respond to the same where income of the assessee is varied by the respondent/revenue as done in
our case in the show cause notice dated 2 nd December, 2021 containing draft assessment order,
the assessing officer proposed to make an addition of Rs. 25,00,000 and without adhering to the
responses filed by the assessee on date 18 th December, 2021, the assessing officer arbitrarily
make an addition of Rs. 40,00,000 without issuing any show cause notice and granting
opportunity of personal hearing as demanded by the assessee. The respondent/revenue, to our
minds, could not have side-stepped such safeguards put in place by the legislature.

(2.1.1) No show cause notice has been issued before passing the order under section 143(3) of
Act.

It has been well settled in the case of Symphony Limited Vs ADIT/ACIT/DCIT (Gujarat High
Court) that the issuance of a show cause notice along with the draft assessment order is sine qua
non before passing an order as per Section 144B of the Act. Undisputedly, in the case on hand,
no show cause notice came to be issued along with draft assessment order and in such
circumstances, the final order of assessment could be said to be without jurisdiction. It has been
held in the case of Pooja Singla Builders and Engineers Pvt. Ltd. vs. National Faceless
Assessment(Delhi High Court) when power is given to do a certain thing in a certain way, the
thing must be done in that way or not at all and other methods of performance are forbidden,
since in the present case no prior show cause notice as well as draft assessment order had been
issued, there has been a violation of the mandatory procedure prescribed in law.

2.2 THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) IS IN

CONTRAVENTION OF PRINCIPLE OF NATURAL JUSTICE

It is submitted before this court that the assessment order passed is in contravention of principle
of natural justice since procedure prescribed under section 144B (1) is not followed by the
assessing officer. The nature and scope of natural justice has been explained in the case of
Swadeshi Cotton Mills v. Union of India, “Rules of natural justice are not embodied rules. Being
means to an end and not an end in themselves, it is not possible to make an exhaustive catalogue
of such rules. But there are two fundamental maxims of natural justice viz. (i) audi alteram
partem and (ii) nemo judex in re sua. The audi alteram partem rule has many facets, two of them
being (a) notice of the case to be met; and (b) opportunity to explain. This rule cannot be
sacrificed.”

It was held in the case of Piramal Enterprises Limited Vs Additional/joint/Deputy/Assistant

CIT/ITO National e-Assessment Centre (Bombay High Court) that the order passed was non est
u/s 144B (9) of the Income Tax Act, 1961 for not adhering the procedure laid down u/s 144B(1).
Principles of natural justice firmly runs through fabric of section 144B (1) of the Income Tax
Act, 1961, captioned ‘Faceless Assessment’ commences vide it’s sub-section (1) with non
obstante clause and compulsively requires assessment u/s 143(3) and 144 by prescribed
procedure contained under sub-section (1) of section 144B.

It is contended that opportunity of personal hearing is an essential requisite before passing an

order prejudicing interest of the assessee. It is submitted that petitioner had requested for
personal hearing in response to the notice dated 2nd December, 2021 inter alia and despite request
of hearing, through video conferencing, the same have not been heeded and / or attended to and
directly order detrimental to the interest of the petitioner has been passed. Hence, it is submitted
that the assessment order is completely contrary to the principles of natural justice and contrary
to law and urge to set aside impugned order as going by the provisions under section144B, when
hearing has been envisioned and incorporated, it is imperative to observe principles of natural
justice as stipulated.
 Reliance is placed on the decision in the case of Globe Capital Foundation vs National E
Assessment Centre, whose case is similar to our present case where no prior show cause notice as
well as draft assessment order had been issued, hence it was held there is a violation of principles
of natural justice as well as the mandatory procedure prescribed in "Faceless Assessment
Scheme" and stipulated in Section 144B of the Act. This section imposes the statutory duty on
the AO to observe the principle of natural justice in the case of every assessment under section
143.

According to the petitioner, the assessment order had been passed without following the
principles of natural justice as his request for personal hearing had not been considered and most
importantly the reply/objection filed in response to the show cause notice with the draft
assessment order had not been considered.

Hence, considering all facts and circumstances mentioned above, it is requested to quash the
draft assessment order passed under section 143(3) of the Income Tax Act.