2.

THE ASSESSMENT ORDER PASSED IS NOT NON EST AS PER SECTION 144B (9)
OF THE ACT.

It is humbly submitted before this Hon’ble Court that the assessment order passed by the
Assessing officer is not a non est order as per section 144B (9) of the Income Tax Act since it
was passed in conformity with the requirements of the Faceless Assessment Scheme, 2019,
forming part of section 144B of the Act. Firstly, Section 144B (9) of the Act has been repealed
retrospectively from 1st April, 2021. Secondly, Order passed is in conformity with requirements
of Faceless Assessment Scheme, 2019.

[2.1] ASSESSMENT ORDER IS NOT NON EST AS PER SECTION 144B (9) SINCE THE
SAID SUBSECTION HAS BEEN DELETD

It is submitted before this Court that one of the grounds on which the assessment order was liable
to be set aside was sub-section (9) of Section 144B of the Income Tax Act, 1961, (for short "the
Act') which, at the relevant time, provided that any assessment made shall be non est, if such
assessment is not made in accordance with the procedure laid down under the said Section.
However, it is submitted that, as such, sub-section (9) of Section 144B of the Act has been
deleted with effect from 1-4-2021 and the provision to declare the assessment as non est if such
assessment is not made in accordance with the procedure laid down under Section 144B of the
Act has also been deleted.

The Finance Act, 2022 has deleted the provisions of sub-section (9) of Section 144B
since its inception, i.e., with effect from 1 st April, 2021. Accordingly, an assessment
can’t be set aside merely because the assessment order has been passed without
following the procedure prescribed by section 144B because the sub-section which
declares the assessment order as non-est is no more in existence.

Adding to the submissions further, the reliance is placed on the decision of the Supreme Court in
the case of National Faceless Assessment Centre v. Mantra Industries Ltd. wherein the Supreme
Court of India has stayed the observation of the Bombay High Court in the case of
Mantra Industries Ltd. v. National Faceless Assessment Centre wherein the assessment
order was set aside relying upon the provisions of sub-section (9) of Section 144B. Said
sub-section declares the assessment as non-est if such assessment is not made in
accordance with the procedures laid down under Section 144B. The Observation of the
Supreme Court is that, as such, sub-section (9) of Section 144B has been deleted with
effect from 1.4.2021 and the provisions to declare the assessment as non est if such
assessment is not made in accordance with the procedure laid down under section 144B
of the Act has been deleted. It is therefore submitted that aforesaid ground shall not be
made available to the assessee and hence the passed assessment order would continue.

[2.2] ASSESSMENT ORDER PASSED IS IN CONFORMITY WITH REQUIREMENTS

OF FACELESS ASSESSMENT SCHEME

It is humbly submitted that assessment order did not passed in contravention of

provisions of 144B of the Act to be held as non est. As Section 144B(7)(vii) provides
that, in a case where variation is proposed in the assessment order, and an opportunity is
provided to the assessee by serving a notice, the assessee, may request for personal
hearing so as to make his oral submissions or present his case before the income tax
authority. And the Chief Commissioner or the Director General, in charge of the
Regional Faceless Assessment Centre, under which the concerned unit is set up, as per
Section 144B(7)(viii), may approve the request for personal hearing if he is of the
opinion that the request is covered by the circumstances refereed to in sub-clause (h) of
clause (xii). However, our case is not covered under the required circumstances as no
modification or variation is proposed in the assessment order. And the personal hearing
in assessment proceedings under the Act is an added opportunity in addition to the
written replies submitted by the assessee, which were taken into consideration at the
time of issuing the show cause notice along with draft assessment order and the outcome
would have been the same even if AO had granted a personal hearing. In other words,
there was no breach of the principles of natural justice on account of personal hearing
not being granted.

Moreover, there is no vested right in the Petitioner to claim personal hearing as the
expression used in clause (vii) of sub-section (7) of Section 144B of the Income tax Act, 1961
(“IT Act”) is ‘may’ and not ‘shall’. Hence, it is not mandatory by Assessing Officer to grant
assessee personal hearing to the assessee.
Section 144B of the Act, made effective from 1st April, 2021, had brought about a new era of
faceless assessment where Assessing Officers cannot be identified during the assessment
proceedings. He submitted that grant of personal hearing in routine and mechanical manner or
stereotyped manner would not only frustrate the entire concept of Faceless Assessment Scheme
but would also defeat the very purpose for which this Scheme was brought about by the
Legislature.

Therefore, the personal hearing is discretionary. Hence, it is emphasised that under faceless
assessment under Section 144B of the Act, the assessee does not have a vested right to personal
hearing and the same could be granted depending upon the individual facts of each case.

Therefore, it is humbly submitted before this Hon’ble Court that the assessment order passed is
not liable to be quashed along with entire assessment proceeding as it does not fulfill the
requirements to be held as non est order.