HEMACHANDRAN NAIR vs. THE INCOME TAX OFFICER WARD-1(3)

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WP(C)/15150/2024HC KeralaKLHC01100591202430 May 2024Bench: HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN5 pages
AI SummaryRemanded

What did the High Court hold?

The High Court held that Section 148A(b) explicitly mandates providing an opportunity of being heard to the assessee. Relying on its previous decision in Income Tax Officer v. Asamannoor Service Co-operative Bank Ltd. [2024(1) KLT 654], the Court reiterated that an effective opportunity of hearing requires consideration of the assessee's reply and permitting them to persuade the Income Tax Officer, potentially through a personal hearing. Since the impugned order under Section 148A(d) and the notice under Section 148 were issued without affording the petitioner an opportunity for hearing, they were set aside. The Court directed the petitioner to appear before the respondent on June 14, 2024, with relevant documents, and ordered the respondent to pass fresh orders after considering the petitioner's submissions. No other issues were expressly left undecided.

What were the facts?

The petitioner, an assessee, received a notice under Section 148A(b) from the respondent Income Tax Officer for assessment year 2017-18, requesting him to show cause why a notice under Section 148 should not be issued. The petitioner contends that the notice did not specify a hearing date. He submitted a reply. However, the respondent passed an order under Section 148A(d) and subsequently issued a notice under Section 148 without affording the petitioner a hearing. The petitioner argues that these actions violate Section 148A(b) and the principles of natural justice.

What were the issues?

1. Whether the order passed under Section 148A(d) and the subsequent notice under Section 148 are liable to be set aside for violation of Section 148A(b) of the Income Tax Act, 1961, and the principles of natural justice, by not affording an effective opportunity of hearing to the assessee? Assessee's Contentions: The petitioner argues that the notice under Section 148A(b) did not specify a date for hearing, and despite submitting a reply, the respondent proceeded to pass an order under Section 148A(d) and issue a notice under Section 148 without providing a personal hearing. This, according to the petitioner, violates Section 148A(b) and the principles of natural justice. Revenue's Contentions: No specific contentions were recorded for the revenue in the judgment.

Which sections of the Income-tax Act were involved?

Section 148A(b),Section 148A(d),Section 148

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 30TH DAY OF MAY 2024 / 9TH JYAISHTA, 1946 WP(C) NO. 15150 OF 2024 PETITIONER/S: HEMACHANDRAN NAIR AGED 61 YEARS KANNANKUZHI VEEDU, VATTAPPARA P.O., THIRUVANTHAPURAM, PIN - 695028 BY ADV PREMJIT NAGENDRAN RESPONDENT/S: THE INCOME TAX OFFICER WARD-1(3) AAYAKAR BHAVAN KOWDIAR P.O. TRIVANDRUM, PIN - 695003 BY ADVS. ADV. P.G. JAYASHANKAR PGJ- SC KEERTHIVAS GIRI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P(C).No.15150 OF 2024 2 JUDGMENT The petitioner is an assessee under the Income Tax Act, 1961 (hereinafter referred to as the 'Act'). The respondent issued Ext.P1 notice under section 148A(b) for the assessment years 2017-18 calling upon the petitioner to show cause as to why a notice under section 148 of the Act shall not be issued. The petitioner states that, Ext. P1 did not specify the date on which the petitioner would be heard. The petitioner submitted Ext.P2 reply. However, without hearing the petitioner the respondent has passed Ext.P3 order under Section 148A(d) of the Act. Pursuant to Ext.P3 the respondent has issued Ext.P4 notice under section 148 of the Act. According to the petitioner Exts.P3 and P4 are issued in violation of the provisions contained in under section 148A(b) and the principles of natural justice.

W.P(C).No.15150 OF 2024 3 Section 148A(b) reads as follows: “Provide an opportunity of being heard to the assessee, by serving upon him a notice to show cause within such time, as may be specified in the notice, being not less than seven days and but not exceeding thirty days from the date on which such notice is issued, or such time, as may be extended by him on the basis of an application in this behalf, as to why a notice under section 148 should not be issued on the basis of information which suggests that income chargeable to tax has escaped assessment in his case for the relevant assessment year and results of enquiry conducted, if any as per clause(a).” An opportunity of hearing is explicit in Section 148A(b) of the Act. This Court in Income Tax Officer v. Asamannoor Service Co-operative Bank Ltd. [2024(1) KLT 654] held that “the opportunity of hearing to be effective must involve a consideration of the reply to the show cause notice by the Income Tax Officer and also permitting the assessee to persuade the Income Tax officer to see

W.P(C).No.15150 OF 2024 4 his point of view in the matter through the grant of a personal hearing where the assessee would be in a position to do so”. Since Ext. P3 and P4 have been issued without affording an opportunity for hearing to the petitioner, the same is set aside. There will be a direction to the petitioner to appear before the 1st respondent on 14.06.2024 with all relevant documents. After considering the submissions of the petitioner the respondent shall pass fresh orders. With this direction, the writ petition is disposed of. Sd/-

MURALI PURUSHOTHAMAN JUDGE al/-

W.P(C).No.15150 OF 2024 5 APPENDIX OF WP(C) 15150/2024 PETITIONER EXHIBITS Exhibit P-1 A TRUE

COPY

NOTICE

NO. ITBA/AST/F/148A(SCN)/

2023- 24/106141993 (1) DATED 23.02.2024 Exhibit P-2 A TRUE COPY OF THE REPLY TO EXT.P-1 FURNISHED BY THE PETITIONER DATED 22.03.2024 Exhibit P-3 A TRUE COPY OF THE ORDER PASSED SECTION

148A(D)

NO. ITBA/AST/F/148A/2023-24/1063675421(1) DATED 30.03.2024 ISSUED BY THE RESPONDENT FOR THE ASSESSMENT YEAR 2017-2018 Exhibit P-4 TRUE COPY OF THE NOTICE UNDER SECTION 148, NO. ITBA/AST/S/148_ 1/2023- 24/1063689835 (1) DATED 30.03.2024 ISSUED BY THE RESPONDENT FOR THE ASSESSMENT YEAR 2017-2018

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