Bahuleyan Nair V. The Deputy Commissioner of Income Tax and The Office of the Assistant Commissioner of Income Tax, DCIT Circle Intl. Tax, Thiruvananthapuram

WP(C)/29108/2023

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The case involves Bahuleyan Nair, a Non-Resident Indian (NRI) engaged in business in Sharjah, UAE, who challenged an order and notice issued by the Income Tax Department under the Income Tax Act, 1961. The petitioner contested the Ext.P3 Order and Ext.P4 Notice on the grounds that they were issued without providing him an opportunity to be heard, which is a requirement under Section 148A(b) of the Income Tax Act. The petitioner argued that the show cause notice was not maintainable as the alleged entries in the books of accounts did not exceed Rs. 50,00,000, as required by Section 149 for issuing a notice for an assessment year. The court found that the petitioner was not given a fair opportunity to present his case, leading to the decision to set aside the order and notice and remand the matter for a fresh hearing.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 798062 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 05-09-2023
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: NIKITHA PAULSON
• Keywords: Assessment Year; Income Tax; Non-Resident Indian; Opportunity of being heard; Show cause notice
• Section: 149; 148A(b); 148A(d)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH TUESDAY, THE 5TH DAY OF SEPTEMBER 2023 / 14TH BHADRA, 1945 WP(C) NO. 29108 OF 2023 PETITIONER: BAHULEYAN NAIR AGED 62 YEARS S/O. KUNJUKRISHNA PILLAI, PALLIPURAM, THIRUVANANTHAPURAM, KERALA, PIN – 695 316. BY ADVS. ASWIN GOPAKUMAR ANWIN GOPAKUMAR SARANYA BABU ADITYA VENUGOPALAN NIKITHA SUSAN PAULSON MAHESH CHANDRAN SHALLET K. SAM RESPONDENTS: THE DEPUTY COMMISSIONER OF INCOME TAX THE OFFICE OF THE ASSISTANT COMMISSIONER OF INCOME TAX, DCIT CIRCLE INTL. TAX, THIRUVANANTHAPURAM, KERALA, PIN – 695 003. OTHER PRESENT: Jose Joseph -SC, Income Tax Department, Kerala THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 29108 OF 2023 2 DINESH KUMAR SINGH, J. -------------------------------------------- WP(C) NO. 29108 OF 2023 -------------------------------------------- Dated this the 05th day of September, 2023 J U D G M E N T 1. Heard Smt. Nikitha Susan Paulson, Learned Counsel for the petitioner and Sri. Jose Joseph, Learned Standing Counsel for Income Tax Department. 2. The Writ Petition is challenging Ext. P3 Order and Ext. P4 Notice on the ground that Ext.P3 Order was passed as per Section 148A (d) of the Income Tax Act, 1961 without providing the petitioner an opportunity of being heard. 3. The petitioner is a Non – Resident Indian (NRI). The claim of the petitioner is that the petitioner is carrying out business in Sharjah (UAE). 4. The petitioner was received a notice dated 07.03.2023 under Section 148A (b) of the Income Tax Act requiring him to show cause as to why, in view of the annexure enclosed with the notice, a notice under Section 148 of the Income Tax Act should not be issued. WP(C) NO. 29108 OF 2023 3 5. The petitioner filed reply to the said notice taking various ground that the Show Cause notice was not maintainable as Section 149 of the Income Tax Act specifically provided that unless entries in the books of accounts which has escaped assessment is more than Rs.50,00,000/- (Rupees Fifty Lakhs only), no notice can be issued for an assessment year. The petitioner was not provided any facility of being heard in person and no consideration of the reply, the impugned order Ext. P3 and Ext. P4 Notice was passed. Section 148 A (b) of the Income Tax Act especially provides the opportunity of being heard to the assessee by serving him with a notice. There is no opportunity of being heard provided to the petitioner, issued Ext.P3 Order and thereafter Ext.P4 Notice which are unsustainable. 6. The present petition is allowed. The impugned order Ext.P3 and Ext.P4 Notice are set aside. The matter is remanded back to the respondents to pass a fresh order, after giving an opportunity of being heard to the petitioner. 7. With the aforesaid directions, the writ petition is allowed. Sd/- DINESH KUMAR SINGH JUDGE rpr WP(C) NO. 29108 OF 2023 4 APPENDIX OF WP(C) 29108/2023 PETITIONER’S EXHIBITS Exhibit P1 A TRUE COPY OF THE SHOW CAUSE NOTICE DATED 07.03.2023 BEARING DIN NO. ITBA/AST/F/148A(SCN)/2022-23/1050470320(1) ISSUED BY THE RESPONDENT UNDER SECTION 148A (B) OF THE INCOME TAX ACT Exhibit P2 A TRUE COPY OF THE REPLY E-FILED BY THE PETITIONER BEARING ACKNOWLEDGMENT NO. 983501261160323 TO EXT. P-1 NOTICE Exhibit P3 A TRUE COPY OF THE ORDER DATED 30.03.2023 BEARING DIN NO. ITBA/AST/F/148A/2022- 23/1051678367(1) UNDER SECTION 148A (D) OF THE INCOME TAX ACT ISSUED BY THE RESPONDENT Exhibit P4 A TRUE COPY OF THE NOTICE DATED 30.03.2023 BEARING NO. ITBA/AST/S/148_1/2022- 23/1051680201(1) ISSUED BY THE RESPONDENT UNDER SECTION 148 OF THE INCOME TAX ACT Exhibit P5 A TRUE COPY OF THE CERTIFICATE DATED 26.07.2023 ISSUED BY THE STATE BANK OF INDIA "