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Opportunity to taxpayer and consideration of evidence are two basic essentials to income tax assessment mechanism. These two subjects to go the root of any assessment and must be obeyed.
The taxpayer lodged a grievance on these two issues before the High Court in (2021) 438ITR693 which declined to intervene citing that the two grounds cannot be read as ‘substantial question of law’.
Unfortunately our law has been read and understood as to assuming that a notice properly addressed to taxpayer stood served upon him unless returned and it is for the taxpayer to prove otherwise.
Never in the history did any tax officer who has completed an assessment present himself before CIT(A) to defend his course or at least to parade his actions on providing opportunities during assessment and list of evidences taken into consideration by him in completing assessment.
What is best scenario in tax litigation ?
In the best scenario in every tax litigation starting Commissioner (A) a certificate must be filed by the AO stating following :
  1. Notices served upon the taxpayer with date of service and upon whom served- this is particularly important in present individual case as service upon a person other than that Individual must be taken as no service ;
  2. List of evidence considered by the AO in completing any assessment.
  3. List of evidence sought by him but not submitted by the taxpayer.
Now that we are in faceless assessment world it is rather most important to have these certifications before hearing any appeal.
Any kind of gap should provide the taxpayer a legitimate and substantial ground to appeal in any Court of law.
CA Gopal Nathani

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