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In a recent case, an assessee was issued show cause notice on 19th April 2021, giving him the opportunity to file a response by 21st April. The assessee received the notice on 20th April through e-mail. It meant that the assessee had a day’s time to reply to the show cause notice. The High Court of Delhi set aside the assessment order and ordered a fresh notice to be issued to the assessee. Further, it also asked to grant a personal hearing to the assessee before passing a fresh assessment order. Lets’ discuss more on reasonable opportunity.
Table of Contents
The right of opportunity is an indispensable part of natural justice which emphasises the fact that no one should be punished without being given opportunity of being heard. The court lives by this fundamental not just in judicial and quasi-judicial proceedings but also in cases involving administrative decisions. Not giving an opportunity of being heard can hamper the entire proceedings therefore, it is a crucial part of the proceedings till date.
In order to make assessments in faceless manner, sub-section (1) of section 144B lays down the procedure. Section 144 B provides the following, which protects the right of opportunity of a person:
Sub-section (1) of Section 144B explains the scope of opportunity-
Apart from clause (ii) of section 144B (1), the provisions providing an opportunity to the assessee doesn’t prescribe a specific time to avail of such opportunity. The time period for filing a response under other clauses providing opportunity is not laid down in the section. It is as per the discretion of the assessing authorities. Thus, gives rise to litigation and controversy.
As stated earlier, the opportunity provided must be reasonable. Lack of enough time while granting an opportunity amounts to an opportunity that is restricted to paper without any real intention to get a response.
If we observe the landmark case of M. Chockalingam and M. Meyyappan vs. CIT, the apex court held that-
The authorities acting under Income Tax Act[1] must act judicially, and one of its essentials is to advance a fair hearing opportunity to a person before ruling against him.
The opportunity of being heard should be authentic, reasonable and adequate. It can’t be just for the name sake and a mere opportunity on paper. It was held in case of CIT vs. Panna Devi Saraogi.
Likewise, in case of Smt. Ritu Devi vs. CIT, only one day time was provided to the assessee to produce reply thus amounts to a denial of opportunity. Therefore the opportunity should be a reasonable opportunity and an effective one and not merely an empty formality. It is worth mentioning here that limitation of time also can’t be an excuse for not providing adequate opportunity.
It may be noted here that severe consequences may transpire if the procedure provided in section 144B is not complied with. In such case, the assessment shall be “not existing”. Thus there is no scope for holding such violation interpreted as curable. Else the entire sub-section (9) would be redundant.
Therefore to sum up our discussion, clarity in respect of time limit for grant of opportunity is highly required. It will help in significantly reducing unnecessary litigation. The concept of reasonable opportunity is indispensable part of justice.
Read our article:Faceless E-Assessment Scheme: Role of Technology
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