Shanti Prime Publication Pvt. Ltd.
Section 246 of the Income-tax Act, 1961 – Appeal – Matter remitted to the office of CIT(A) as the order of AO do not reflect whether opportunity of hearing was given to assessee to or not and power of judicial review under article 226 cannot be done without it. [2020] 54 ITCD 115 (KER)
Facts: Petitioner submitted return showing total income and net tax payable but the same was not accepted resulting into issuance of notice under section 143(2) and after scrutiny of books of accounts, the net income of the petitioner company was determined as Rs. 17,15,01,720/-. Similarly for the assessment year 2018-19, a demand of Rs. 44,30,632/- was raised. The petitioner preferred Exts. P5 and P12 appeals under section 246 of the Income-tax Act along with stay applications.
Held, that the assessing officer referred to the Circular No. 6 of 2016 dated 29.02.2016 issued by the CBDT, but interpreted in a different context. Quasi- judicial authorities like Commissioner of Income-tax (Appeals) are also legitimately expected to refer to the arguments submitted in support of the interim prayer sought in support of the memorandum of appeal preferred against the assessment orders and cannot blindly apply the Circular, as in the instant case. Even the order do not reflect whether opportunity of hearing was given to the petitioner nor any advertance to any arguments. Such order cannot escape the scrutiny of the Court, while exercising the power of judicial review under Article 226 of the Constitution of India. In view of what has been noticed, order passed by AO is set aside and the matter is remitted to the Office of the CIT(A) to consider the stay applications and pass detailed order, after affording opportunity of hearing to the petitioner.