DINESH DINAKARAN PILLAI, vs. THE INCOME TAX OFFICER,

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WP(C)/23174/2023HC KeralaKLHC01050842202315 November 2023Bench: HONOURABLE MR. JUSTICE D. K. SINGH4 pages
AI SummaryRemanded

What did the High Court hold?

The High Court of Kerala allowed the writ petition. The Court noted the petitioner's submission that no opportunity of being heard was provided before the order under Section 148A(d) was passed for re-opening the assessment for Assessment Year 2016-17. The Revenue's counsel could not provide instructions to the contrary. Consequently, the Court set aside the impugned order. The matter was remitted back to the respondent (Income Tax Officer) to pass fresh orders in accordance with the law after giving notice of hearing to the petitioner. The petitioner was directed to appear before the Assessing Officer on 01.12.2023 to make his submissions. The Court did not decide on the merits of the re-opening of assessment itself, but focused on the procedural lapse.

What were the facts?

The petitioner, Dinesh Dinakaran Pillai, filed a writ petition before the High Court of Kerala challenging an order passed by the Income Tax Officer, Ward 2(1), Trivandrum. The petitioner sought to quash the order under Section 148A(d) and all consequential proceedings. The assessment year in question was 2016-17. The petitioner contended that no opportunity of being heard was provided before the impugned order was passed. The Revenue's counsel stated they had no instructions regarding the opportunity of hearing afforded to the petitioner.

What were the issues?

1. Whether the order passed under Section 148A(d) of the Income Tax Act, 1961, for re-opening the assessment for Assessment Year 2016-17 is liable to be quashed on the ground that the petitioner was not afforded an opportunity of being heard prior to its passing? Assessee's Contention: The petitioner argued that the order under Section 148A(d) was passed without providing him with an opportunity of being heard, which is a mandatory procedural requirement. The petitioner relied on the fact that the impugned order (Exhibit P5) did not reflect any such hearing. Revenue's Contention: The Standing Counsel for the Revenue stated that they did not have specific instructions regarding whether the petitioner was heard before the order under Section 148A(d) was passed.

Which sections of the Income-tax Act were involved?

Section 148A(d)

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 WEDNESDAY, THE 15TH DAY OF NOVEMBER 2023 / 24TH KARTHIKA, 1945 WP(C) NO. 23174 OF 2023 PETITIONER/S:

DINESH DINAKARAN PILLAI, AGED 52 YEARS S/O. P. DINAKARAN PILLAI, MEKKAPLATHARA, PAZHAVADI STREET, NEDUMANGAD, PIN - 695541

BY ADVS. ASWIN GOPAKUMAR ANWIN GOPAKUMAR ADITYA VENUGOPALAN NIKITHA SUSAN PAULSON MAHESH CHANDRAN SHALLET K. SAM

RESPONDENT/S:

THE INCOME TAX OFFICER, THE OFFICE OF THE INCOME TAX OFFICER, WARD 2 (1), TRIVANDRUM, AAYAKAR BHAVAN, PEROORKADA, KOWDIAR, THIRUVANANTHAPURAM, KERALA., PIN - 695003

BY ADV CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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J U D G M E N T

The present writ petition under Article 226 of the Constitution of India has been filed seeking the following reliefs: “i) issue a writ of certiorari or any other appropriate writ, direction or order and quash Exhibit P5 Order issued by the Respondent and all further proceedings arising therefrom; and ii) to exempt the Petitioner from producing the English Translation of Malayalam Exhibits produced along with this Writ Petition and the Petitioner further undertakes that he is ready and willing to produce English translation of Malayalam documents as an- when required; and (iii) to grant such other and incidental reliefs as this Hon'ble court may deem fit, just and necessary in the peculiar facts and circumstances of this case; and (iv) to allow this writ petition (civil) with costs to the Petitioner.”

2.

Learned Counsel for the petitioner submits that before the order under Section 148A(d) came to be passed, no opportunity of being heard was afforded to the petitioner. From the order impugned in Ext.P5, it is not reflected that the

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petitioner was being heard before the order under Section 148A(d) came to be passed for re-opening the assessment in respect of the Assessment Year 2016-17.

3.

Mr Christopher Abraham learned Standing Counsel for the Revenue submitted that he did not have instructions regarding the opportunity of being heard given to the petitioner before the order under Section 148A(d) came to be passed.

4.

In view thereof, the present writ petition is allowed. The impugned order is set aside. The matter is remitted back to the file of the respondent to pass fresh orders in accordance with the law after giving notice of hearing to the petitioner. The petitioner shall appear before the Assessing Officer/respondent on 01.12.2023 and make his submissions.

Sd/- DINESH KUMAR SINGH JUDGE jjj

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APPENDIX OF WP(C) 23174/2023

PETITIONER EXHIBITS Exhibit P-1 A TRUE COPY OF THE SALE DEED DATED 27.02.2016 EXECUTED BY THE PETITIONER IN FAVOR OF MR. SAJAN KOSHY ALONG WITH TYPED COPY Exhibit P-2 A TRUE COPY OF THE NOTICE DATED 07.02.2023 BEARING DIN NO. ITBA/AST/S/133(6)/2022- 23/1049493652(1) ISSUED BY THE RESPONDENT UNDER SECTION 133 (6) OF THE INCOME TAX ACT Exhibit P-3 A TRUE COPY OF THE SHOW CAUSE NOTICE DATED 03.03.2023 BEARING DIN NO. ITBA/AST/F/148A(SCN)/2022-23/1050397106(1) UNDER SECTION 148 A OF THE INCOME TAX Exhibit P-4 A TRUE COPY OF THE REPLY DATED 23.03.2023 SUBMITTED BY THE PETITIONER Exhibit P-5 A TRUE COPY OF THE ORDER DATED 30.03.2023 BEARING DIN NO. ITBA/AST/F/148A/2022- 23/1051635769(1) UNDER SECTION 148A (D) OF THE INCOME TAX ACT ISSUED BY THE RESPONDENT

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