JUDGMENT : SONIA GOKANI, J. 1. The petitioner is a limited company which had filed the original return of income for the assessment year 2018-19 on 30.11.2018 declaring the total income at Rs. 59,03,19,030/-. The assessee filed the revised return of income declaring the total income of Rs. 57,46,07,670/-. It is a company engaged in the business of manufacturing and sale of pharmaceutical products. 2. The case of the petitioner was selected for the scrutiny under CASS and notice under Section 143(2) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) was issued to the petitioner on 22.09.2019 and thereafter, notice under Section 142(1) of the Act dated 20.09.2021 was issued. 2.1. The petitioner submitted its response on 04.10.2019 and 24.09.2021. The part information were by the petitioner tendered on 24.09.2021 and sought a short adjournment to furnish the remaining details as it was allowed only four days to submit such a response. 2.2. Since one of the reasons for selection of the case under scrutiny was international transactions – T.P. Risk Parameters as per para 3.2 of the Instruction No. 3/2016, the case was referred under Section 92CA(1) to the Transfer Pricing Officer for determination of Arm’s Length Price on 08.02.2021. The Transfer Pricing Officer had made adjustment of Rs. 2,49,36,861/- to the international transaction. 2.3. It is a grievance on the part of the petitioner that it received the draft assessment order under Section 143(3) read with Section 144C of the Act dated 29.09.2021 surprisingly and shockingly assessing the income of the petitioner under Section 144C(1) of the Act at Rs. 154,82,25,131/- without issuing the show cause notice and without providing the opportunity of being heard. It was also being directed that within 30 days of the receipt of draft order, it may file acceptance of the variation to the assessing officer or file objection, if any, with the Dispute Resolution Panel and the Assessing Officer. 2.4. On the ground that this draft order under Section 143(3) read with Section 144C is in violation of principles of natural justice as well as its statutory provisions under Section 144B, the same deserves to be quashed. 2.4. On the ground that this draft order under Section 143(3) read with Section 144C is in violation of principles of natural justice as well as its statutory provisions under Section 144B, the same deserves to be quashed. On a ground that the respondent has completely failed to follow the procedure prescribed under Section 144B of the Act and this since amounts to breach of principles of natural justice, it has approached this Court relying on various decisions on this issue of invocation of powers under Article 226 of the Constitution of India despite the alternative remedy being available, with the following prayers:- “(a) quash and set aside the impugned order at Annexure- 'A' to this Petition; (b) pending the admission, hearing and final disposal of this petition, to stay implementation and operation of the order at Annexure- 'A' to this petition; (c) any other and further relief deemed just and proper be granted in the interest of justice; (d) to provide for the cost of this petition.” 3. This Court on 15.11.2021 issued notice to the respondents by passing following order:- “According to the petitioner for the Assessment Year 2018 and 2019 without following the provisions of law the order has been passed by the respondent under Section 143(3) read with Section 144 C of the Income Tax Act assessing the income of the petitioner at Rs 154,82,25,131/-. This according to the petitioner has been passed without issuing the show cause notice as also furnishing the draft assessment order which otherwise is a must after the introduction of the faceless assessment under Section 144(B). The prayer sought for are as follows : 7(a) quash and set aside the impugned order at Annexure -’A’ to this petition; (b) pending the admission, hearing and final disposal of this petition, to stay implementation and operation of the order at Annexure A to this petition. (c) any other and further relief deemed just and proper be granted in the interest of justice. (d) to provide for the cost of this petition. 2. We have heard learned Advocate Mr. (c) any other and further relief deemed just and proper be granted in the interest of justice. (d) to provide for the cost of this petition. 2. We have heard learned Advocate Mr. Bandish Soparkar who has taken us through the provision of the law and also the factual details to urge that selection of the case under the scrutiny was in relation to the international transaction and the matter was referred under Section 92 (C) (A) (1) to the Transfer Pricing Officer for determination of Arm’s Length Price who made an adjustment of Rs 2,49,36,861/- to the international transaction. However, with regard to the other additions neither there is a show cause notice nor any draft assessment order and hence, the assessment order under Section 144 (C) is abi nitio unsustainable. 3. Issue Notice as to interim relief returnable on 22.11.2021. 4. Direct Service is permitted today by Speed Post.” 3.1. By way of an order dated 25.11.2021, the amendment sought for was allowed:- “Considering the averments made in the Note for Speaking to Minutes, the same is allowed. The word “Vadodara” in paragraph 1 of the order dated 25.11.2021 be substituted and be read as “Ahmedabad”. Rest of the order shall hold the field.” “1. Draft amendment moved today is permitted by joining jurisdictional Assessing Officer as a party from Vadodara and National Faceless Assessment Centre, New Delhi will be a separate party. Necessary amendments to be carried out today itself. 2. Let the service through the speed post be made to the National Faceless Assessment Centre, New Delhi by next week. 3. We have heard the learned advocate, Mr.B.S.Soparkar appearing for the petitioner and learned senior advocate, Mr.M.R.Bhatt appearing for respondent-department. 4. Request has been made by the learned senior advocate, Mr.M.R.Bhatt to grant the time as there is no detail obtained from the National Faceless Assessment Centre and it is not feasible for him to get it in a near future. It is also further submitted that the cause title since was not proper, the concerned officer also was unable to provide the necessary instructions. 5. We have also heard learned advocates on both the sides on the interim relief as the time is expiring on 29.11.2021 for preferring the appeal. 6. It is also further submitted that the cause title since was not proper, the concerned officer also was unable to provide the necessary instructions. 5. We have also heard learned advocates on both the sides on the interim relief as the time is expiring on 29.11.2021 for preferring the appeal. 6. Noticing the nature of litigation and the averment set out questioning the noncompliance of provision of law, we are inclined to accede to the request of stay the implementation and operation of the assessment order dated 27.09.2021 till 14.12.2021. 7. Affidavit-in-reply shall be filed in the instant case on or before 14.12.2021.” 4. The affidavit-in-reply is filed by the Commissioner of Income Tax, Circle 1(1)(1) denying all allegations. It has not disputed that the case of the petitioner was selected for scrutiny under CASS for the assessment year 2018-19 and notice under Section 143(2) dated 22.09.2019 has been issued and served upon the assessee - petitioner on 22.09.2019 with the compliance on or before 07.10.2019. 4.1. The petitioner responded on 04.10.2019 with basic documents such as Audited Financials, Tax Audit Report, Income Tax Return, Income Tax Computation and TP Certificate in Form 3CEB. The case got transferred to ReFAC Faceless Assessment Unit on 13.10.2020. It was selected for two of the CASS reasons, International Related Party Transactions in Services and International Related Party Transactions in Nature of Guarantee apart from other reasons. 4.2. Such proposal of reference to TPO has been made to the Technical Unit on 08.02.2021 after obtaining necessary approval from the competent authority. The order under Section 92CA(3) of the Act had been received by the Faceless Assessing Unit on 03.09.2021. The notice under Section 142(1) had been issued by the Faceless Assessment Unit with a compliance date being on or before 24.09.2021. The partial response was given by the petitioner. The Faceless Assessment Officer in his work list dated 27.09.2021 wrote this:- “I have been given additional charge of Re FAC -AU 5(2) (1), Chennai- stationed at Hosur vide order of Pr. CCIT dated 14/09/2021 and took charge on 16/09/2021 (Fore Noon). I got mapped my RSA to AU 5(2)(1) on 16/09/2021. I am also holding substantive charge of Re FAC AU 1(1) (1), Salem. CCIT dated 14/09/2021 and took charge on 16/09/2021 (Fore Noon). I got mapped my RSA to AU 5(2)(1) on 16/09/2021. I am also holding substantive charge of Re FAC AU 1(1) (1), Salem. The case has 17 CASS reasons with TP Risk Parameter and hence was referred to TPO and order received and an amount of Rs.2,49,36,861/- is proposed as the Transfer Pricing adjustment to arrive at Arm's Length Price. No.142(1) notice issued till date by previous AO who were holding charge s. This issue was brought to kind attention of PCIT/JCIT vide letter dated 20/09/2021. Questionnaire issued on 20/09/2021 calling for reply in respect of CASS reasons. The assessee has only replied partly the questionnaire. Assessment completed based on reply filed and previous years assessment proceedings.” 4.3. The draft assessment order was approved by the Range Head on 27.09.2021 and the case was referred to the review unit and the review report was received on 28.09.2021. The draft order under Section 144C was issued and served on the assessee on 29.09.2021 after obtaining the approval of the Range Head. It had proposed the TPO adjustment and other additions in the following manner:- 1. TPO Adjustment Rs. 2,49,36,861/- 2. Addition of Duty Drawback Rs. 8,53,56,024/- 3. Disallowance claimed u/s 35(2AB) Rs. 75,98,99,576/- 4. Expenditure is Capital in nature Rs. 10,34,25,000/- 4.4. Thus, the total income of the assessee had been made at Rs. 154.82 crores (rounded off) in accordance with Section 144C of the Act. It was further directed that the assessee – company shall, within 30 days of the receipt of the draft order, file acceptance of variation to the assessing officer or file objections, if any, with the Disputes Resolution Panel and the Assessing Officer. 4.5. The petitioner preferred the present petition against the draft assessment order dated 29.09.2021 on the ground that the same has been passed without affording any reasonable opportunity and without following the due procedure as prescribed under Section 144B of the Act. The petitioner also filed objection with the DRP, Mumbai against the draft assessment order, however, due to the server error on portal, they were unable to upload the complete set. 4.6. The petitioner also filed objection with the DRP, Mumbai against the draft assessment order, however, due to the server error on portal, they were unable to upload the complete set. 4.6. It is not disputed that in the said affidavit-in-reply that the draft order under Section 144C issued and served on the assessee on 29.09.2021 is only a draft-cum-show cause order under Section 144C of the Act with the proposed variation as mentioned hereinafter:- “8. Considering the reasons for selection of case under scrutiny and also considering the adjustments made by the Transfer Pricing Officer and also reply furnished by the assessee in response to 142(1), the Total income of the assessee is assessed u/s. 144C(1) of the Income-tax Act, 1961 as under: Income as per Return Rs. 57,46,07,67/- TPO Adjustment Rs. 2,49,36,861/- Addition of Duty Drawback Rs. 8,53,56,024/- Disallowance claimed u/s 35(2AB) Rs. 75,98,99,576/- Expenditure is Capital in nature Rs.10,34,25,000/- Total Income of the Assessee Rs. 154,82,25,131/-. In accordance of sec 144C of the Act, 1961, the assessee company shall, within thirty (30) days of receipt of this draft order, file acceptance of the variation to the assessing officer or file objections, if any, with the disputes resolution panel and the Assessing Officer.” 4.7. Section 144C provides that the assessing officer shall, notwithstanding anything contrary contained in the Act, forward a draft of the proposed order of assessment to the eligible assessee if he proposes to make, on or after the 1st day of the October, 2009, any variation in the income or loss returned which is prejudicial to the interest of the assessee. The draft order under Section 143(3) read with Section 144C of the Act, according to the respondent, is not the final order and the assessee is given an opportunity to file the acceptance of the variation or file any objection with the Faceless Assessing Officer (FAO) or with the Dispute Resolution Panel. The Faceless Assessing Officer also has jurisdiction as per the provision under Section 144C(1) to forward the draft assessment order to the eligible assessee and therefore, this ground of assessee is not sustainable. 4.8. The case of the petitioner was selected for scrutiny. The Faceless Assessing Officer also has jurisdiction as per the provision under Section 144C(1) to forward the draft assessment order to the eligible assessee and therefore, this ground of assessee is not sustainable. 4.8. The case of the petitioner was selected for scrutiny. The assessee had provided the basic documents, however, it chose not to respond to the supporting documents for the CASS reasons mentioned in the notice under Section 143(2) dated 22.09.2019 as required to be furnished by the assessee on or before 07.10.2019. Thus, he had not complied with the statutory notice by filing the supporting documents which were called for by the department. He has further explained that the case got transferred to the ReFAC Faceless Assessment Unit on 13.10.2020 intimating that the case will be completed under Faceless Assessment Scheme, 2019. 4.9. It is contended that the assessee had chosen purposely not to file necessary particulars called for vide notice under Section 143(2) on 22.09.2019 for two long years and finally at the tail end furnished only the part particulars which the assessee should have filed to the initial statutory notice issued on 22.09.2019 itself. The Faceless Assessing Officer was put under the hardship as the limitation date was 30.09.2021 which was soon approaching and non-responsive approach of the assessee was for two long years. It was required to follow the provisions of Section 144C(1) of the Act, the Faceless Assessing Officer had issued and served on the assessee the draft assessment order under Section 144C cum show cause with a proposed variations. Hence, the ground of assessee of only four days were available to furnish the documents deserves rejection. 4.10. There are other grounds raised by emphasizing that the non-availment of the opportunity and breach of principles of natural justice must not be considered noticing the conduct of the petitioner and again the draft assessment order under Section 143(3) read with Section 144C is only the draft and not the final order. 5. We have heard learned advocate Mr. B.S.Soparkar assisted by learned advocate Mr. Manya Anjaria appearing for the petitioner and learned Senior Standing Counsel Mr. Varun Patel assisted by learned Standing Counsel Mr. Dev Patel for the respondents. 6. 5. We have heard learned advocate Mr. B.S.Soparkar assisted by learned advocate Mr. Manya Anjaria appearing for the petitioner and learned Senior Standing Counsel Mr. Varun Patel assisted by learned Standing Counsel Mr. Dev Patel for the respondents. 6. The Court cannot be oblivious of the fact that the notice under Section 143(1) dated 22.09.2019 was issued for the assessment year 2018-19 for scrutiny under CASS reasons and served upon the petitioner on 22.09.2021 with a compliance date on or before 07.10.2019. The petitioner did respond to this on 04.10.2019 with the basic document of Audited Financials, Tax Audit Report, Income Tax Return, Income Tax Computation and TP Certificate in Form 3CEB. Then the matter got transferred to ReFAC Faceless Assessment Unit on 13.10.2020. 6.1. Between October, 2019 to October, 2020 there does not appear to be any correspondence nor any furnishing of documents. The intimation of the case to be completed under the Faceless Assessment Scheme, 2019 was given on 15.10.2020 and the case was selected for two of the CASS reasons, International Related Party Transactions in Services and International Related Party Transactions in Nature of Guarantee apart from other reasons. The proposal for the reference to TPO also had been made to the technical unit on 08.02.2021 after obtaining approval from the competent authority and the order under Section 92CA(3) of the Act dated 28.07.2021 has been received by Faceless Assessment Unit (FAU) on 03.09.2021. The FAU then issued notice on 20.09.2021 under Section 142(1) seeking compliance which had been responded to partly on 24.09.2021. 6.2. There was a need to comply the assessment as per the affidavit-in-reply by 30.09.2021. Considering the limitation dated of 30.09.2021 which was fast approaching and there was only one day left, the FAO had issued and served upon the assessee the draft assessment order under Section 144C cum show cause notice on 29.09.2021 expecting it to respond by 30.09.2021. It is true that the original notice is of the year 2019, however, that had been partly responded to by the assessee and thereafter, the Court cannot be oblivious of the fact of period of two long years it was a COVID-19 virus which had governed the fields in pandemic which was a major hampering factor. 6.3. It is true that the original notice is of the year 2019, however, that had been partly responded to by the assessee and thereafter, the Court cannot be oblivious of the fact of period of two long years it was a COVID-19 virus which had governed the fields in pandemic which was a major hampering factor. 6.3. On the part of the respondent also, the development which had been noted above and which had taken place, eventually resulted into the issuance of notice under Section 143(2) on 22.09.2021. The compliance date was of only two days’ where the part response was given. The limitation date was since fast approaching, the draft assessment order under Section 143(3) read with Section 144C was necessary to be approved by the concerned authority. After following that procedure, when the same had been served upon the petitioner, only a day’s time was left. To say that this was only the draft assessment order where the opportunity would always be given by the different authorities to the petitioner and hence, the Court needs to overlook this haste is surely not something endorseable nor approvable. 6.4. The Court needs to, in particular, make a note of the fact that the case had got transferred to ReFAC Faceless Assessment Unit on 13.10.2020. The proposal for reference to TPO, as mentioned above, was made to the Technical Unit on 08.02.2021 after obtaining necessary approval from the competent authority. The officer concerned had noted his constraint by mentioning that he had been given an additional charge of ReFAC (AU) 5(2)(1), Chennai stationed at Hosur on 14.09.2021. He was already holding substantive charge of ReFAC (AU) 1(1)(1), Salem. He had about seventeen CASS reasons with TP risk parameters and hence, was referred to TPO. 6.5. The draft assessment order was approved by the Range Head on 27.09.2021 and the case was referred to review unit and the review report was received on 28.09.2021 and the draft order passed under Section 144C was issued and served upon the assessee on 29.09.2021 after obtaining the approval from the Range Head. 6.6. There are a huge additions proposed by the TPO. To grant the time of one day is virtually giving no time. 6.6. There are a huge additions proposed by the TPO. To grant the time of one day is virtually giving no time. To say that he would have an opportunity before other officers and accepting such contention on the part of the respondent would amount to nullify the statutory provision which mandates giving of opportunity with the draft assessment order to the petitioner which, in the instant case, is missing completely. 6.7. We would also like to refer to Section 144C which under the heading of reference to Dispute Resolution Panel provides for the assessing officer to forward a draft of the proposed order of assessment to the eligible assessee if he proposes to make, on or after the 1st day of October, 2009, any variation which is prejudicial to the interest of such assessee. Sub-section (2) of Section 144C provides that on receipt of the draft order, the eligible assessee, within thirty days of the receipt of such draft order, file his acceptance of the variations to the Assessing Officer or file his objection to such variation with either the Dispute Resolution Panel and the Assessing Officer. Sub-section (3) contemplates the Assessing Officer to complete the assessment on the basis of the draft order if, the assessee intimates to the Assessing Officer the acceptance of the variation or, no objections are received within the period specified in sub-section (2). The Assessing Officer is authorized to pass the assessment order under sub-section (3) within one month from the end of the month in which the acceptance is received or the period of filing of objections under sub-section (2) expires. The Dispute Resolution Panel, in a case where any objection is received under sub-section (2), issue such directions, as it thinks fit, for the guidance of the Assessing Officer to enable him to complete the assessment. 7. Even if, that opportunity is available with the assessee, the fact remains that there is a specific provision under Section 144C where the specific time period is given to the assessee for it to respond to the draft assessment order and any objection if is filed, the same shall need to be regarded by the assessing officer before it forwards the same to the Dispute Resolution Panel. This opportunity, admittedly, has not been made available. This opportunity, admittedly, has not been made available. The constraints of pandemic had restrained the petitioner from complying with the directions of the officer concerned in furnishing the material, at the same time, the officer concerned had an additional charge and he needed to meet with the time limit and hence, he chose to complete the same without affording the opportunity to the petitioner as is otherwise required under the law and therefore, on the ground of non-affording the opportunity and breach of principles of natural justice, the Court needs to intervene. The effective efficacious remedy available is also no ground as can be also noted from the decision of the Apex Court in case of Radha Krishan Industries [2021 SCC OnLine SC 334] as well as the decision of this Court in case of Engineering Professional Co. (P.) Ltd. [(2020) 424 ITR 253 (Gujarat)] and various other decisions. 8. Resultantly, the present petition is allowed quashing and setting aside the impugned order dated 29.09.2021. The respondent shall avail the opportunity to the petitioner from the stage it had been denied by following the statutory provisions.