K. Abdul Majeed vs The Income Tax Officer
2023 Latest Caselaw 13501 Ker

Kerala High Court

K. Abdul Majeed vs The Income Tax Officer on 21 December, 2023

Author: Dinesh Kumar Singh

Bench: Dinesh Kumar Singh

        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

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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

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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

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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