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IN THE HIGH COURT OF JUDICATURE AT BOMBAY:

BENCH AT NAGPUR

Writ Petition No. 1899/2021

Petitioner: Dev Bahuudeshiva Sanstha, Pusad

Through its President
At Post Pusad Taluka, Pusad
Dist: Yavatmal - 445204
.

Versus

Respondents: 1. National e-Assessment Centre,

Mayur Bhawan, Connaught
Lane, Barakhamba, New
Delhi-110001

2. The Principal Commissioner of

Income Tax, The National
e-Assessment Centre, Mayur
Bhawan, Connaught Lane,
Barakhamba, New Delhi-110001

3. Assessing Officer, Dy.

Commissioner of Income Tax, The
National e-Assessment Centre,
Mayur Bhawan, Connaught Lane,
Barakhamba, New Delhi-110001

4. The Union of India, through

Central Board of Direct Tax,
Mayur Bhawan, Connaught Lane,
Barakhamba, New Delhi-110001

Submissions on behalf of Respondents

May it please My Lords:

The Respondents, hereinabove, most respectfully

submits as follows –
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1. At the outset it is submitted that the instant submissions

are being filed by the Respondents in response to the petition

and the application for amendment moved by the petitioner

without prejudice to their legal right to file a fuller and more

detailed reply at a later stage if so necessary.

2. It is further at the outset submitted that all the adverse

allegations made in the Petition are denied. The allegations

which are not traversed specifically are also denied as though

they were specifically traversed and denied. The allegations,

which are not denied specifically, may not be taken to have

been admitted.

3. It is further at the outset submitted that the petition is not

maintainable in the form as is presented before this Hon’ble

Court. It is submitted that during the pendency of the petition,

the assessment proceedings are over and the questions

agitated in the instant petition can very well be raised by the

petitioner in Appeal provided under the provisions of the IT Act.

As such the petition deserves to be dismissed with exemplary

costs on the ground of alternate remedy.

4. Secondly, it would not be possible for the Petitioner to

raise challenge to the order passed by the assessing officer in

exercise of jurisdiction under Article 226 of the Constitution

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when efficacious remedy is available to the Petitioner under the

Act since the decision of the Hon’ble Supreme Court in the

case of Maheshkumar Agrawal reported in 105 taxmann.com

273 and in the case of Chhabildas Agarwal reported in 36

taxmann.com 36 are clearly applicable to the facts of the case.

5. It is further submitted that on one hand the Petitioner has

not provided complete details during Assessment proceedings

and on the other hand the Petitioner has failed to extend proper

cooperation to the assessing officer. The Petitioner has not

explained even before this Hon’ble Court, the reasons for their

failure to submit complete details to various notices issued to

them. It is thus apparent that the Petitioner has filed the instant

writ petition disclosing partial facts, while conspicuously hiding

its non-compliant attitude. Therefore, the relief sought in the

instant Petition is without any justification and based on

incorrect and misleading facts and the Petition therefore

deserves to be dismissed.

6. It is pertinent to mention here that the Petitioner was

given a detailed query letter u/s 142(1) dated 19-01-2021 and

was asked to explain and furnish relevant documents required

for completion of the scrutiny assessment proceedings. A

copy of the notice issued u/s 142(1) is annexed herewith as

ANNEXURE NO R – I. In reply, the assessee vide a

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single page letter dated 20-01-2021 filed online. A bare

persusal of the reply would reveal that despite mentioning of

enclosing of rejection letter, the assessee failed to attach the

same with his online reply. The assessee did not enclose the

rejection order of the competent authority rejecting claim of

exemption u/s 10(23C)(vi) of the Income Tax Act, 1961

deliberately so as to avoid furnishing conclusive evidence on

the issue. A copy of the said reply filed by the petitioner is

annexed herewith as ANNEXURE NO R – II. From the above

it is clear that no meaningful and relevant explanation or

supporting documents as required vide notice u/s 142(1) was

furnished by the assessee on 20-01-2021 and therefore the

claim of the assessee in the writ petition that reply was filed by

the petitioner is totally false and misleading.

7. It is pertinent to note that since the petitioner did not

explain and furnish the supporting documents on the issues

raised in the questionnaire u/s 142(1) dated 19-01-2021,

therefore further notices u/s 142(1) for furnishing of information

were subsequently issued on 24-02-2021, 05-03-2021, 24-03-

2021 and finally on 03-04-2021, repeatedly requesting the

assessee to explain the points as per questionnaire and furnish

the relevant documents in support of his claim, however the

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assessee failed to explain or furnish any such documents

except a one page reply on 20-01-2021. Consolidated copies

of all the notices issued to the petitioner are annexed herewith

as ANNEXURE No R – III.

8. It is further submitted that the contention of the petitioner

that the A.O issued a draft assessment order / show cause

notice dated 08-04-2021 in a most arbitrary manner is

vehemently denied being devoid of merits since the draft

assessment order dated 08-04-2021 was issued as per the

directions / guidelines issued by the CBDT on SOP for

Assessment Unit under the Faceless Assessment Scheme,

2019 dated 19-11-2020 and other circulars / notifications issued

by the competent authorities from time to time.

9. It is further submitted that since no objection to the

proposed addition as per the Draft Assessment Order (DAO)

was furnished by the petitioner through the e-filing portal within

the time allowed in the Show Cause Notice (SCN). Also the

contention of the petitioner that an Audit Report & Income

Expenditure statement had been sent is devoid of merit since

the petitioner was required to get his account audited and

upload the Audit Report through the e-filing portal of the

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department on before the due date as provided under section

12A(1)(b) r.w.r 17B of the Income Tax Act, 1961. However no

such Audit Report in Form-10B for the F.Y.2018-19 relevant to

A.Y.2019-20 was found uploaded by the petitioner in the ITBA /

e-filing system of the department on or before the due date.

Also at Para-3 of the Draft Assessment order dated 08-04-2021

it was clearly mentioned that the petitioner was required to

submit his response through his registered e-filing account at

www.incometaxindiaefiling.gov.in by 23:59 hours of 09-04-2021

which the petitioner failed to comply.

10. It is further submitted that the petitioner sought 10

days time to file their submissions through e proceedings portal

does not hold any ground since the time limit for filing of

response has been clearly mentioned in the Draft Assessment

Order at Para-3 at 23:59 hours of 09-04-2021. Here it is

pertinent to mention that the petitioner was fully aware of the

fact that an assessment proceeding is pending for the

A.Y.2019-20 and a number of notices on various dates have

been issued to the petitioner to present their case, but it seems

that the petitioner conveniently chose not to furnish any reply or

comply with the said notices on or before the given dates,

despite the fact that the petitioner had full knowledge of the

pending assessment proceedings . Thus the requirement of

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giving fair opportunity to the petitioner for filing their

submissions and also the principle of Natural Justice has been

duly complied with before passing the Final Assessment Order.

11. It is further submitted that the final assessment order was

passed as per the provisions of the Income Tax Act, 1961 and

also following the detailed procedure as laid down in the CBDT,

SOP for Assessment Unit under the Faceless Assessment

Scheme, 2019 issued dated 19-11-2020. Also the Assessing

Officer (AO) had passed a detailed, reasoned and speaking

order giving ample of opportunities to the petitioner to respond

to various notices and allowing sufficient time. The same is

clearly ascertainable from the fact that the first notice under

section 142(1) was issued on 19-01-2021 and the Draft

Assessment Order was issued on 08-04-2021, therefore the

claim of the petitioner that the assessment order dated 20-04-

2021 has been passed in violation of principle of natural justice

is unjustified and sans merit.

12. It is further submitted that the assessment order dated

20.04.2021 was passed after following due process of law and

as per facts and circumstances of the case after considering all

the submissions of the Petitioner and following all the principles

of natural justice. It is a rational speaking assessment order

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which is judicious and well - reasoned, as per law and

sustainable and well within jurisdiction of Assessing Officer.

13. It is further submitted that the baseless contention of the

petitioner that the respondents have violated the Instruction No.

20/2015 dated 29-12-2015 is vehemently denied being devoid

of merits since after the introduction of Faceless Assessment

Scheme by the GOI dated 13-08-2020 and SOP issued by the

CBDT dated 19-11-2020 all faceless assessments were

completed as per the above scheme and directions laid down

therein has been scrupulously followed in all cases including

the case of the petitioner. Also the applicability of the said

Instruction No. 20/2015 is only applicable where the case is

selected for scrutiny under CASS only on the parameters of

AIR / CIB / 26AS data, whereas the instant case has been

selected through CASS on the basis of Compulsory Scrutiny

Reasons Notified by the CBDT. However ample opportunities

have been given to the petitioner to present their case and

therefore the principle of Natural Justice has been duly followed

by the respondents in passing the final assessment order.

14. It is further submitted that the petitioner has further

claimed prayed for addition of Additional Commissioner of

Income Tax, Nagpur as party respondent no 5 in the present

matter. The said contention is absolutely baseless in the

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present situation since the faceless assessment scheme of the

department the scrutiny assessment of all the assessees are

randomly allocated to various assessment units all over the

country by the National Faceless Assessment Centre and the

local or jurisdictional officer of the income tax department is in

no way connected with such assessment proceedings,

therefore cannot be made a party in the present circumstances.

15. It is further submitted that the the petitioner has

challenged the provisions of Clause (viii) of sub-section (7) of

Section 144B and sub-clause (h) of clause (xii) of sub-section

(7) of Section 144B as discriminatory and violative of Article 14

of the Constitution of India. The contentions of the petitioner are

denied being devoid of merits since the Law has been passed

by the Parliament after due debate and the SOP for faceless

assessment has been issued by the CBDT keeping in view all

the Provisions of the I.T Act, 1961 which had been scrupulously

followed during the course of assessment proceeding by the

faceless assessment unit. Also the petitioner has never opted

for personal hearing through video conferencing during the

course of faceless assessment proceedings, and therefore

cannot raise the issue of discrimination after completion of the

assessment proceeding in view of the Principle of Estoppel as

per Section 115 of the Evidence Act, 1872 which is clearly

applicable in this case.

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16. It is further submitted that the provisions of Section 144B

and underlying procedures are uniformly applicable to all

assessee whose case are selected for scrutiny assessment by

the National Faceless Assessment Centre and no such

arbitrariness or discrimination is followed by any of the Faceless

Assessments Units during the course of faceless assessment

proceeding, rather a very reasonable, assessee friendly and

transparent process has been followed by the National

Faceless Assessment Centre during the entire course of

assessment proceeding as per the directions / guidelines

issued by the CBDT on SOP for Assessment Unit under the

Faceless Assessment Scheme, 2019 dated 19-11-2020 and

other circulars / notifications issued by the competent

authorities from time to time. Accordingly, the allegations

regarding the validity of the assessment order based on the

provisions of the section 144B are baseless and raised on

incorrect and misleading facts and therefore, are liable to be

dismissed and dealt with an iron hand.

17. It is further submitted that the contention of the validity of

the provisions of section 144B does not arise by any stretch of

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imagination, since all cases finalized in faceless assessment

system including the impugned order passed by the present

Respondents are sent for review as per the ‘Risk Management

System (RMS)’ of the FAS-2019, which is clearly mentioned in

Section 144-B(1)(xvi). In case of the Petitioner, the Section

144-B(1)(xvi)(b) is not applicable since Review Unit (RU) has

concurred with the final Draft Assessment Order submitted to it,

and therefore there was no need to serve another show-cause

to the Assessee.

18. It is further submitted that the Petitioner is raising the issue

of constitutional validity of the FAS-2019, even though, all the

principles of natural justice have been followed and

implemented in letter and spirit, in the case of the Petitioner.

The scheme itself provides adequate checks and balances, and

moderation by mechanism of a review unit. In the present case,

concurrence of review unit was also obtained. All submissions

of the Petitioner have been taken into consideration before

passing the final Assessment Order.

19. It is therefore submitted that the Petitioner has an

alternative remedy, whereby they can approach Commissioner

Appeals (CIT-A) against the order passed in their case. They

may also approach the Respondents under section 264 of the

Income Tax Act. It is therefore submitted that the act of the

Petitioner in approaching this Hon’ble Court without exhausting

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appropriate remedies needs to be dealt with strictest action by

this Hon’ble Court.

20. It is thus clear that there is neither any illegality nor any

violation of law, warranting interference at the hands of this

Hon’ble Court. The petition being devoid of any substance and

in view of the availability of alternate remedy is liable to be

dismissed with cost for abusing the inherent jurisdiction of this

Hon’ble Court.

Nagpur

Dated:- 13.07.2021

Counsel For Respondents

Solemn Affirmation

I, , aged about __ years, the of the Respondent No above

do state on oath that contents in para no 1 to 21 are true and

correct to the best of my knowledge and information received

by me to be true correct. Hence, signed, affirmed on ____ day

of July 2021 at Nagpur.

Deponent
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I know and identify Deponent.

Advocate