SREEKALA AJAYAKUMAR, V. UNION OF INDIA,

WP(C)/13711/2023

AI Insights

The case involves a writ petition filed by Sreekala Ajayakumar against the Union of India and the Income Tax Officer, Ward-1, challenging an order under Section 148A(d) of the Income Tax Act, which was issued for re-opening the assessment for the Assessment Year 2016-17. The petitioner contended that she was not given an opportunity to be heard before the issuance of the order. The respondent did not have instructions regarding the opportunity of being heard. Consequently, the court set aside the impugned order and remitted the matter back for a fresh decision after a proper hearing.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 724655 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 12-01-2024
• Assessment Year: misc
• Laws Referred To: Article 226 of the Constitution of India, Section 148A of the Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: CYRIAC TOM
• Assessee Lawyers: KURYAN THOMAS; M GOPIKRISHNAN NAMBIAR; K MATHAI; JOSON MANAVALAN; PAULOSE ABRAHAM; RAJAKANNAN
• Keywords: Certiorari; Certiorari; Opportunity of being heard; Re-opening assessment; Ultra Vires; Writ petition
• Section: 148A(d)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH FRIDAY, THE 12TH DAY OF JANUARY 2024 / 22ND POUSHA, 1945 WP(C) NO. 13711 OF 2023 PETITIONER: SREEKALA AJAYAKUMAR, VRINDAVANAM, MANIPUZHA, NATTAKOM, KOTTAYAM- 686013. BY ADVS. SRI. KURYAN THOMAS SRI. M. GOPIKRISHNAN NAMBIAR SRI. K. JOHN MATHAI SRI. JOSON MANAVALAN SRI. PAULOSE C. ABRAHAM SRI. RAJA KANNAN RESPONDENTS: 1 UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF FINANCE (DEPARTMENT OF REVENUE), NORTH BLOCK, NEW DELHI – 110001. 2 THE INCOME TAX OFFICER, WARD-1, PUBLIC LIBRARY BUILDING, SHASTRI ROAD, KOTTAYAM-686001. BY ADV. SRI. CYRIAC TOM – SC - INCOME TAX DEPARTMENT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 13711 OF 2023 2 DINESH KUMAR SINGH, J. -------------------------- W.P.(C) No. 13711 of 2023 ------------------------- Dated this the 12th day of January, 2024 JUDGMENT 1. The present writ petition under Article 226 of the Constitution of India has been filed seeking the following reliefs: i) To call for the records leading upto Ext. P9 order issued by the 2nd respondent and quash the same by the issuance of a writ of certiorari, or such other writ, order or direction; ii) Declare that Ext. P9 order is ultra vires Section 148A of the Act; iii) grant such other and incidental reliefs as this Hon’ble Court may deem just and necessary on the facts and circumstances of this case; iv) Allow this writ petition (civil) with costs to the petitioner. v) Dispense with the production of English translation of Exts. P6 and P-7. 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.P9, it is not reflected that the petitioner was being heard before the WP(C) NO. 13711 OF 2023 3 order under Section 148A(d) came to be passed for re-opening the assessment in respect of the Assessment Year 2016-17. 3. Mr. Cyriac Tom, 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 2nd 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/2nd respondent on 18.01.2024 and make her submissions. Sd/- DINESH KUMAR SINGH JUDGE Svn WP(C) NO. 13711 OF 2023 4 APPENDIX OF WP(C) 13711/2023 PETITIONER’S EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE NOTICE DATED 16.01.2023 ISSUED BY THE 2ND RESPONDENT UNDER SECTION 133(6) OF THE ACT, FOR A.Y 2016-17 EXHIBIT P2 THE TRUE COPY OF THE LETTER DATED 30.01.2023 FILED BY THE PETITIONER IN RESPONSE TO EXT.P1 NOTICE EXHIBIT P2(A) THE TRUE COPY OF THE LOCAL DELIVERY BOOK DATED NIL, EVIDENCING THE FILING OF EXT.P2 REPLY BEFORE THE OFFICE OF THE 2ND RESPONDENT EXHIBIT P3 THE TRUE COPY OF THE NOTICE DATED 22.02.2023 ISSUED BY THE 2ND RESPONDENT UNDER SECTION 148A (B) OF THE ACT, FOR A.Y 2016-17 EXHIBIT P4 THE TRUE COPY OF THE E-PROCEEDINGS RESPONSE ACKNOWLEDGMENT DATED NIL, EVIDENCING THE RESPONSE FILED BY THE PETITIONER AGAINST EXT.P3 NOTICE EXHIBIT P5 THE TRUE COPY OF THE REPLY (WITHOUT ANNEXURES) DATED 09.03.2023 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P5(A) THE TRUE COPY OF THE LOCAL DELIVERY BOOK DATED NIL, EVIDENCING THE FILING OF EXT.P5 REPLY BEFORE THE OFFICE OF THE 2ND RESPONDENT EXHIBIT P5(B) THE TRUE COPY OF THE E-PROCEEDINGS RESPONSE ACKNOWLEDGMENT DATED NIL, UPDATING THE PHYSICAL FILING OF EXT.P5 REPLY BY THE PETITIONER AGAINST EXT.P3 NOTICE EXHIBIT P6 THE TRUE COPY OF THE SALE DEED (WITHOUT ANNEXURES) DATED 09.10.2015 IN RESPECT OF THE PROPERTY COMPRISED IN BLOCK NO. 18, RE-SY. NO. 330 (SUB-DIVISION NO. 1-3 AND 4-1) OF KOTTAYAM DISTRICT EXHIBIT P7 THE TRUE COPY OF THE SALE DEED (WITHOUT ANNEXURES) DATED 09.10.2015 IN RESPECT OF THE PROPERTY COMPRISED IN BLOCK NO. 18, RE-SY. NO. 330 (SUB-DIVISION NO. 1) OF KOTTAYAM DISTRICT WP(C) NO. 13711 OF 2023 5 EXHIBIT P8 THE TRUE COPY OF THE NOTARIZED AFFIDAVIT DATED 09.03.2023 EXECUTED BY THE SELLERS OF PROPERTIES AS PER EXTS.P6 AND P7 SALE DEEDS EXHIBIT P9 THE TRUE COPY OF THE ORDER (WITHOUT ANNEXURES) DATED 17.03.2023 ISSUED BY THE 2ND RESPONDENT UNDER SECTION 148A(D) OF THE ACT EXHIBIT P10 THE TRUE COPY OF THE NOTICE DATED 17.03.2023 ISSUED ALONG WITH EXT.P9 ORDER BY THE 2ND RESPONDENT UNDER SECTION 148 OF THE ACT EXHIBIT P11 THE TRUE COPY OF THE JUDGMENT DATED 10.11.2022 IN W.P.(C) NO. 11456/2022 "