Question And Answer
Subject: Can an Assessing Officer pass a final faceless assessment order , without passing a draft assessment order ?
Querist: Satyanarayann
Answered by:
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Date: May 11, 2021
Query asked by Satyanarayann

Assessing Officer has passed the final order , without providing a draft assessment order . Can the assessee file writ petition against the order as the Assessing officer has not passed draft assessment order which is mandatory .?

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Answer given by

The violation of the due process prescribed by law, in the back drop of the fundamental rights granted by the constitution of India is a sufficient reason for the invocation of the Writ Jurisdiction of the Jurisdiction High Court by as Assessee. However, the Courts are loath to interfere in the due process of law in the presence of an alternative and efficacious remedy that is provided by law.

Chapter XX of the Income-tax Act, 1961, deals with appeals and revision. As per orders passed by the Assessing Officer under Section 143(1), 143(1B), 143(3), 144, 147 and 150 (amongst others) are appealable before the Commissioner of Income-tax (Appeals). The ground that the draft order that should have been furnished to the Assessee before the final order is passed can be taken up in the Appeal before the Commissioner (Appeals). In the presence of an alternative and efficacious remedy, the Assessee would be better off approaching the Commissioner (Appeals) in an appeal against the Assessment order than approaching the High Court in a Writ Petition against the same.
Note : Refer , Dimension Data Asia Pacific PTE Ltd. v. Dy. CIT (2018) 257 Taxman 442 / 169 DTR 145 / 304 CTR 140 (Bom.)(HC) the Court held that order passed without passing a draft assessment order being violative of provisions of section 144C(1) is set aside also refer Turner International India P. Ltd. v. Dy. CIT (2017) 398 ITR 177 /297 CTR 460 /152 DTR 303 (Delhi) (HC), JCB India Ltd v. Dy. CIT (2017) 398 ITR 189/298 CTR 558/158 DTR 259 /251 Taxman 143 (Delhi) (HC) , International Air Transport Association v. DCIT (2016) 142 DTR 293 / 241 Taxman 249 / 290 CTR 46 (Bom.)(HC)

Dr. K. Shivaram, Senior Advocate .

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