2022 (6) TMI 1355 - AT - Income Tax

Tribunal Grants Stay on Tax Demand, Emphasizes Compliance & Early Appeal Hearing

The Tribunal granted a stay on the recovery of outstanding demand for 180 days or until appeal disposal, emphasizing early appeal hearing. It found ... Faceless assessment scheme - mandatory procedure of section 144B - requirement of show cause notice and personal hearing under section 144B - obligation to implement Dispute Resolution Panel directions under section 144C(10) and 144C(13) - addition under section 68 treated as unexplained share capital - stay on recovery of demand - prima facie case and balance of convenienceMandatory procedure of section 144B - requirement of show cause notice and personal hearing under section 144B - obligation to implement Dispute Resolution Panel directions under section 144C(10) and 144C(13) - stay on recovery of demand - prima facie case and balance of convenience - addition under section 68 treated as unexplained share capital - Validity of the assessment order and the grant of stay on recovery of the demand in view of alleged non-compliance with the faceless assessment procedure and non implementation of DRP directions - HELD THAT: - The Tribunal found that the faceless assessment scheme was invoked and NFAC had proposed a draft assessment order but the Assessing Officer, in the final assessment order, remained silent on the assessee's allegation that the mandatory requirements of section 144B (including issuance of show cause notice and personal hearing) were not complied with. The DRP had specifically directed the Assessing Officer to pass a reasoned/speaking order on that complaint and to consider the evidences filed by the assessee in relation to the addition under section 68, but the Assessing Officer merely reiterated observations from the draft order without implementing the DRP's directions. On the materials before it, and having regard to the statutory obligations under section 144B and the duty to implement DRP directions under section 144C(10) and (13), the Tribunal was satisfied that the assessee had made out a strong prima facie case and that the balance of convenience favored relief. The Tribunal did not decide the substantive correctness of the section 68 addition on merits, which it left to the appeal; its observations were confined to the limited context of the stay application. The Tribunal therefore granted an interim stay on recovery of the demand for a limited period and directed an early, out of turn hearing of the appeal, warning that unnecessary adjournment by the assessee would lead to vacatur of the stay. [Paras 7, 8, 9, 11]Stay of recovery of outstanding demand granted for 180 days from the date of the order or until disposal of the appeal, whichever is earlier; appeal to be fixed for out of turn hearing on 29.08.2022 and stay liable to be vacated if the assessee seeks unnecessary adjournment.Final Conclusion: The Tribunal allowed the stay application, observing non compliance with section 144B and non implementation of DRP directions under section 144C, granted a limited stay on recovery of the demand for 180 days or until disposal of the appeal, and directed an early hearing of the appeal (29.08.2022), leaving substantive issues including the section 68 addition to be decided at the hearing. Issues:Stay on recovery of outstanding demand including interest charged under section 234B and 234D for assessment year 2018-19. Validity of draft assessment order under section 144B of the Income-tax Act, 1961. Final assessment order passed by jurisdictional Assessing Officer. Non-implementation of directions by DRP in final assessment order. Addition under section 68 of the Act. Stay of recovery and early hearing of appeal.Validity of Draft Assessment Order under Section 144B:The assessee sought a stay on the recovery of an outstanding demand, contending that the assessment order was unsustainable in law due to non-compliance with section 144B of the Income-tax Act, 1961. The counsel argued that the National Faceless Assessment Centre (NFAC) did not follow the mandatory procedure of section 144B, as there was no show-cause notice or personal hearing before passing the draft assessment order. The counsel relied on decisions of the Delhi High Court to support this contention. The Tribunal observed that the Assessing Officer had not addressed the violation of section 144B in the final assessment order, indicating a failure to follow the statutory provisions.Final Assessment Order Passed by Jurisdictional Assessing Officer:The assessee challenged the final assessment order passed by the jurisdictional Assessing Officer after the draft assessment order by NFAC. The counsel argued that since the case did not fall under section 144B(8) of the Act, the jurisdictional Assessing Officer could not have passed the final assessment order. The Tribunal noted that the Assessing Officer did not implement the directions of the Dispute Resolution Panel (DRP) in the final assessment order, which was deemed a violation of statutory provisions.Non-Implementation of Directions by DRP in Final Assessment Order:The DRP had directed the Assessing Officer to consider the evidences and submissions of the assessee, particularly regarding additions made under section 68 of the Act, and pass a speaking order. However, the Assessing Officer failed to implement these directions in the final assessment order, merely repeating observations from the draft assessment order. The Tribunal found this to be a failure to comply with the mandatory provisions of the Act, indicating a lack of due diligence in implementing DRP's directions.Addition under Section 68 of the Act:A significant addition to the demand was related to share capital received from non-resident shareholders treated as unexplained investment under section 68 of the Act. The DRP directed the Assessing Officer to consider the evidences provided by the assessee, but the final assessment order did not reflect this consideration. The Tribunal concluded that the Assessing Officer had not followed the directions of the DRP in spirit, highlighting a failure to adhere to statutory provisions.Stay of Recovery and Early Hearing of Appeal:Considering the prima facie case made by the assessee and the balance of convenience, the Tribunal granted a stay on the recovery of the outstanding demand for 180 days or until the disposal of the corresponding appeal, whichever was earlier. The Tribunal also directed an early hearing of the appeal, which was not opposed by the Departmental Representative, setting a specific date for the hearing and emphasizing that unnecessary adjournments could lead to the vacation of the stay.In conclusion, the Tribunal allowed the stay application, emphasizing that the observations made in the order regarding the stay would not influence the final decision on the appeal. The detailed analysis of the issues highlighted the failure to comply with statutory provisions, the importance of implementing DRP's directions, and the significance of ensuring due process in assessment proceedings under the Income-tax Act, 1961.