Shri Mohammed Noushad V. The Income Tax Officer, Ward-1 and The Principal Commissioner of Income Tax

WP(C)/13318/2023

AI Insights

The case involves Shri Mohammed Noushad, the petitioner, who challenged the order and notice issued by the Income Tax Officer for the assessment year 2016-17. The petitioner had not filed his income tax return for the specified year and was subsequently issued a notice under Section 148A(b) of the Income Tax Act. Although the petitioner responded to the notice, the Income Tax Officer passed an order under Section 148A(d) without providing a personal hearing, which was contested in the writ petition. The court referenced a previous judgment affirming the necessity of a personal hearing before such an order and thus set aside the impugned orders, remitting the case for a fresh decision post-hearing.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 796807 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 09-01-2024
• Assessment Year: misc
• Other Referred Cases: Abdul Majeed son of Shri. Ali Mohammed vs. Income Tax Officer, Majestic Handicraft Pvt Ltd vs. Deputy Commissioner of Income Tax, Naresh Balachandra Rao Shinde vs. Income Tax Officer Ward - 5(3) Nagpur, The Principal Commissioner of Income Tax, Nagpur, Anshul Jain v Principal Commissioner of Income Tax and Another, M/S Viswabharathi Medicals v Income Tax Officer
• Laws Referred To: Income Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: CHRISTOPHER ABRAHAM
• Assessee Lawyers: V P NARAYANAN
• Keywords: Assessment Year 2016-17; Income Tax; Notice; Personal hearing; Writ petition
• Section: 148A(b); 148A(d)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH TUESDAY, THE 9TH DAY OF JANUARY 2024 / 19TH POUSHA, 1945 WP(C) NO. 13318 OF 2023 PETITIONER/S: SHRI. MOHAMMED NOUSHAD, AGED 39 YEARS EDAKKARAKATH HOUSE, EDAPPAL VIA, VATTAMKULAM P.O, MALAPPURAM - 679578 KERALA. BY ADV V.P.NARAYANAN RESPONDENT/S: 1 THE INCOME TAX OFFICER, WARD-1, MAYOS, SULTHAN BATHERY ROAD, KAINATTY, KALPETTA, WAYANAD- 673 122 KERALA. 2 THE PRINCIPAL COMMISSIONER OF INCOME TAX, I.S. PRESS ROAD, C R BUILDING, KACHERIPADY, KOCHI, PIN - 682018 BY ADV CHRISTOPHER ABRAHAM OTHER PRESENT: CHRISTOPHER ABRAHAM-SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)No.13318 of 2023 2 JUDGMENT Dated this the 9th day of January, 2024 The present writ petition has been filed impugning the Ext.P5 order dated 30.03.2023 and Ext.P6 notice of the same date, issued by the 1st respondent for the assessment year 2016- 17. 2. The petitioner an assessee under the provisions of the Income Tax Act has not filed the return of his income for the assessment year 2016-17. The petitioner was issued a notice under Section 148A(b) of the Income Tax Act, to which the petitioner submitted reply. However, without affording an opportunity of being heard, the impugned order in Ext.P5 under clause (d) of Section 148A of the Income Tax Act has been passed. 3. The issue that personal hearing is required before passing an order under Clause (d) of Section 148A of the Income Tax Act is covered by the judgment of this Court dated 17.10.2023 falls under W.P.(C.) No.12595 of 2023. In the said judgment, it has been held that in Section 148A(b) the phrase, “provide an opportunity of being heard to the assessee” would mean an opportunity of personal hearing to the assessee. In the WP(C)No.13318 of 2023 3 present case, no such hearing was afforded before the impugned order in Ext.P5 has been passed. 4. In view thereof, the present writ petition is allowed and the impugned orders are set aside. The matter is remitted back to the assessing authority. The petitioner is directed to appear before the 1st respondent on or before 15.01.2024, with all the relevant records/evidence in his possession of being heard. After considering the submission of the assessee, the assessing authority is required to pass a fresh order under Section 148A(d) and thereafter proceed with the matter. It is made clear that, if the petitioner does not appear on 15.01.2014 before the 1st respondent, no more further opportunity shall be granted to the petitioner for being heard. With the above directions, the present writ petition stands allowed. Sd/- DINESH KUMAR SINGH JUDGE AP WP(C)No.13318 of 2023 4 APPENDIX OF WP(C) 13318/2023 PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 23.01.2023 FOR AY 2016-17 EXHIBIT P2 THE TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT UNDER SECTION 148A (B) OF THE ACT FOR AY 2016-17 DATED 09.03.2023 EXHIBIT P3 THE TRUE COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT ON 16.03.2023 GRANTING TIME FOR THE 1ST RESPONDENT TO FILE THE REPLY EXHIBIT P4 THE TRUE COPY OF THE REPLY FILED BY THE PETITIONER ALONG WITH ANNEXURES FOR AY 2016-17 DATED 21.03.2023 EXHIBIT P5 THE TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT UNDER SECTION 148A (D) OF THE ACT DATED 30.03.2023 FOR AY 2016-17 EXHIBIT P6 THE TRUE COPY OF THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT DATED 30.03.2023 FOR AY 2016-17 EXHIBIT P7 THE TRUE COPY OF THE LOAN STATEMENT AND THAT OF THE CERTIFICATE OBTAINED FROM THE CHARTERED ACCOUNTANT EXHIBIT P8 A TRUE COPY OF THE ORDER IN SPECIAL LEAVE TO APPEAL (C) NO. 86/2023 DATED 03-01-2023 EXHIBIT P9 A TRUE COPY OF THE JUDGEMENT ( ABDUL MAJEED SON OF SHRI. ALI MOHAMMED VS. INCOME TSC OFFICER) DATED 29-06-2022 EXHIBIT P10 A TRUE COPY OF THE ORDER (MAJESTIC HANDICRAFT PVT LTD VS. DEPUTY COMMISSIONER OF INCOME TAX) DATED 27-03-2023 EXHIBIT P11 A TRUE COPY OF THE ORDER (NARESH BALACHANDRA RAO SHINDE VS. INCOME TAX OFFICER WARD - 5(3) NAGPUR, THE PRINCIPAL COMMISSIONER OF INCOME TAX , NAGPUR) DATED 26-09-2022 REPORTED IN 2022 TAXCORP (DT) 88199 (HC-BOMBAY) RESPONDENT EXHIBITS RESPONDENT EXHIBITS EXHIBIT R1(A) COPY OF THE JUDGMENT OF THE SUPREME COURT IN THE CASE OF ANSHUL JAIN V PRINCIPAL COMMISSIONER OF INCOME TAX AND ANOTHER , 449 ITR 256 (SC) EXHIBIT R1 (B) COPY OF THE JUDGMENT OF PUNJAB AND HARYANA HIGH COURT IN THE CASE OF ANSHUL JAIN V.PRINCIPAL COMMISSIONER OF INCOME TAX AND ANOTHER ,449 ITR 251 (P AND H) EXHIBIT R1(C) JUDGMENT OF KERALA HIGH COURT IN WPC NO.37527/2022 IN THE CASE OF M/S VISWABHARATHI MEDICALS V INCOME TAX OFFICER "