K. ABDUL MAJEED, vs. THE INCOME TAX OFFICER,

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WP(C)/14993/2023HC KeralaKLHC01032515202321 December 2023Bench: HONOURABLE MR. JUSTICE D. K. SINGH5 pages
AI SummaryRemanded

What did the High Court hold?

The High Court allowed the Writ Petition and set aside the impugned orders dated 05.04.2023. The Court held that the phrase 'provide an opportunity of being heard to the assessee' as used in Clause (b) of Section 148 of the Income Tax Act implies an opportunity for personal hearing. Since this opportunity was not granted to the petitioner before the passing of the impugned orders, the orders were vitiated. The matter was remanded back to the respondent Income Tax Officer to provide an opportunity of hearing to the petitioner and pass fresh orders under Section 148A(d) of the Income Tax Act. The petitioner was directed to appear on 10.01.2024. The Assessing Officer is to pass fresh orders after considering the petitioner's submissions and then proceed further if required for issuing notice under Section 148. No other issue was expressly left undecided.

What were the facts?

The petitioner, K. Abdul Majeed, represented by his Power of Attorney Holder, filed a Writ Petition challenging orders dated 05.04.2023 (Exts.P6 and P7). These orders were passed by the Income Tax Officer, Ward-2, Malappuram District, under Section 148A(d) of the Income Tax Act, 1961. The orders concluded that it was a fit case for reopening assessments for Assessment Years 2016-2017 and 2019-2020 under Section 147 of the Act by issuing notice under Section 148. The core of the petitioner's grievance was that he was not granted a personal hearing before these impugned orders were passed.

What were the issues?

1. Whether the impugned orders dated 05.04.2023, passed under Section 148A(d) of the Income Tax Act, are liable to be set aside on the ground that the petitioner was not afforded a personal hearing. (Question of law and fact, turning on Section 148A(d) and Section 148(b) of the Income Tax Act). Assessee's Contention: The petitioner argued that the phrase 'provide an opportunity of being heard to the assessee' as implied in Clause (b) of Section 148 of the Income Tax Act necessitates a personal hearing. The petitioner relied on the judgment of this Court in Asamannoor Service Co-operative Bank Ltd. v. Income Tax Officer [W.P.(C)No.12595/2023] dated 17.10.2023. Revenue's Contention: The judgment records no specific argument from the revenue.

Which sections of the Income-tax Act were involved?

Section 148A(d),Section 148,Section 147,Section 148(b)

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH THURSDAY, THE 21ST DAY OF DECEMBER 2023 / 30TH AGRAHAYANA, 1945 WP(C) NO. 14993 OF 2023 PETITIONER/S: K. ABDUL MAJEED, AGED 46 YEARS S/O.K.MOHAMMED, KAMBRATH HOUSE, KALPAKACHERI, RANDATHANI, MALAPPURAM DISTRICT. REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, PRASAD THOTTIYIL, AGED 33 YEARS, S/O.VELAYUDHAN THOTTIYIL,RESIDING AT THOTTIYIL HOUSE, KODAKKALINGAL, CHULLIPARA P.O., TIRURANGADI, MALAPPURAM DISTRICT - 676 510. BY ADVS. K.J.ABRAHAM PREMJIT NAGENDRAN NIKHIL JOHN RESPONDENT: THE INCOME TAX OFFICER, WARD-2, 2ND FLOOR, TARIFF BAZAR, OPP. TOWN HALL, CHEMBRA, TIRUR, MALAPPURAM DISTRICT, PIN - 676101 BY ADVS. JOSE JOSEPH CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C)No.14993/2023 ..2.. DINESH KUMAR SINGH, J ========================= W.P.(C)No.14993 of 2023 ========================== Dated this the 21st day of December, 2023 JUDGMENT The present Writ Petition has been filed impugning the orders dated 05.04.2023 in Exts.P6 and P7, in respect of the assessment year 2016-2017 and 2019-2020, passed under Section 148(A)(d) of the Income Tax Act (‘Act’ for short), wherein the satisfaction has been recorded that it is a fit case for issuance of notice under Section 148 of the Act for those assessment years and the assessments are to be reopened under Section 147 by issuing notice under Section 148 of the Act. 2. The only ground which has been urged by the learned counsel for the petitioner is that the petitioner was not heard in person before passing the impugned orders in Exts.P6 and P7. The learned counsel for the petitioner placed reliance on the judgment of this Court in Asamannoor Service Co- operative Bank Ltd. v. Income Tax Officer [W.P. (C)No.12595/2023] dated 17.10.2023. This Court while

WP(C)No.14993/2023 ..3.. considering the language implied in Clause (b) of Section 148 of the Income Tax Act, the phrase “provide an opportunity of being heard to the assessee” it means the opportunity of personal hearing. So there is no such opportunity granted to the petitioner before impugned orders in Exts.P6 and P7 came to be passed. Therefore, the present Writ Petition is allowed and the impugned orders are set aside. The matter is remanded back to the respondent to provide an opportunity of hearing to the petitioner and pass fresh orders under Section 148(A)(d) of the Income Tax Act. The petitioner is directed to appear before the respondent on 10.01.2024, along with all the relevant documents in his possession for being heard. So after considering the submissions of the assessee, the Assessing Officer should pass fresh orders under Section 148A(d) and then proceed further, if is so required for issuing notice under Section 148. Sd/-

DINESH KUMAR SINGH JUDGE ACR

WP(C)No.14993/2023 ..4.. APPENDIX OF WP(C) 14993/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTICE NO. ITBA/AST/S/131/2022-23/1049493681(1) DATED 07.02.2023 ISSUED BY THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, KOZHIKODE Exhibit P2 TRUE COPY OF NOTICE NO. ITBA/AST/F/148A(SCN)/2022- 23/1050992719(1) DATED 20.03.2023 ISSUED BY THE RESPONDENT FOR THE ASSESSMENT YEAR 2016-2017 Exhibit P3 TRUE COPY OF THE NOTICE NO. ITBA/AST/F/148A (SCN)/2022- 23/1050993148(1) DATED 20.03.2023 ISSUED BY THE RESPONDENT FOR THE ASSESSMENT YEAR 2019-2020 Exhibit P4 TRUE COPY OF THE REPLY TO EXT.P-2 FILED BY THE PETITIONER DATED NIL. Exhibit P5 TRUE COPY OF THE REPLY TO EXT.P-3 FILED BY THE PETITIONER DATED NIL. Exhibit P6 TRUE COPY OF THE ORDER PASSED SECTION 148A(D) NO. ITBA/AST/F/148A/2023- 24/1051876511(1) DATED. 05.04.2023 BY THE RESPONDENT FOR THE ASSESSMENT YEAR 2016-2017 Exhibit P7 TRUE COPY OF THE ORDER PASSED SECTION 148A(D) AND NO. ITBA/AST/F/148A/2023- 24/1051868312(1) DATED 05.04.2023 BY THE RESPONDENT FOR THE ASSESSMENT YEAR 2019-2020 Exhibit P8 TRUE COPY OF THE NOTICE UNDER SECTION 148, NO. ITBA/AST/S/148_1/2023- 24/1051876763(1) DATED 05.04.2023 ISSUED BY THE RESPONDENT FOR THE ASSESSMENT YEAR 2016-2017 Exhibit P9 TRUE COPY OF THE NOTICE NO. ITBA/AST/S/148_1/2023-24/1051868414(1) DATED 05.04.2023 ISSUED BY THE RESPONDENT FOR THE ASSESSMENT YEAR 2019-2020 RESPONDENT EXHIBITS

WP(C)No.14993/2023 ..5.. Exhibit R1(a) Copy of the judgment of the Supreme Court dated september 2, 2022 449 ITR 256 (SC) Exhibit R1 (b) Copy of the judgment of the Panjab and Hariyana High Court in the case of Anshul Jain v. Principal Commissioner of Income Tax and Another dated June 2, 2022, 449 ITR 251 (p and H) Exhibit R1(c) Copy of the judgment of the Kerala High Court dated 07.12.2022 in the case of M/s Viswabharathi Medicals v. Income Tax offficer

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