Dated This The 21[St ] Day Of December, 2023 v. Income Tax Officer[W.p.(C)

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH THURSDAY, THE 21 DAY OF DECEMBER 2023 / 30TH AGRAHAYANA, 1945 WP(C) NO. 14993 OF 2023 PETITIONER/S: K. ABDUL MAJEED,AGED 46 YEARSS/O.K.MOHAMMED, KAMBRATH HOUSE, KALPAKACHERI, RANDATHANI, MALAPPURAM DISTRICT. REPRESENTED BYHIS 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.ABRAHAMPREMJIT NAGENDRANNIKHIL JOHN RESPONDENT: THE INCOME TAX OFFICER,WARD-2, 2ND FLOOR, TARIFF BAZAR, OPP. TOWN HALL, CHEMBRA, TIRUR, MALAPPURAM DISTRICT, PIN - 676101BY ADVS.JOSE JOSEPHCHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSIONON 21.12.2023, THE COURT ON THE SAME DAY DELIVERED THEFOLLOWING: DINESH KUMAR SINGH, J ========================= W.P.(C)No.14993 of 2023 ==========================Dated this the 21[st ] day of December, 2023 JUDGMENT The present Writ Petition has been filed impugning theorders dated 05.04.2023 in Exts.P6 and P7, in respect of theassessment year 2016-2017 and 2019-2020, passed underSection 148(A)(d) of the Income Tax Act (‘Act’ for short),wherein the satisfaction has been recorded that it is a fit casefor issuance of notice under Section 148 of the Act for thoseassessment years and the assessments are to be reopenedunder Section 147 by issuing notice under Section 148 of theAct. 2.The only ground which has been urged by thelearned counsel for the petitioner is that the petitioner was notheard in person before passing the impugned orders in Exts.P6and P7. The learned counsel for the petitioner placed relianceon 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 considering the language implied in Clause (b) of Section 148of the Income Tax Act, the phrase “provide an opportunity ofbeing heard to the assessee” it means the opportunity ofpersonal hearing. So there is no such opportunity granted tothe petitioner before impugned orders in Exts.P6 and P7 cameto be passed. Therefore, the present Writ Petition is allowed and theimpugned orders are set aside. The matter is remanded backto the respondent to provide an opportunity of hearing to thepetitioner and pass fresh orders under Section 148(A)(d) of theIncome Tax Act. The petitioner is directed to appear before therespondent on 10.01.2024, along with all the relevantdocuments in his possession for being heard. So afterconsidering the submissions of the assessee, the AssessingOfficer should pass fresh orders under Section 148A(d) andthen proceed further, if is so required for issuing notice underSection 148. ACR Sd/- DINESH KUMAR SINGH JUDGE APPENDIX OF WP(C) 14993/2023 Exhibit R1(a) Exhibit R1 (b) Exhibit R1(c) Copy of the judgment of the Supreme Court dated september 2, 2022 449 ITR 256 (SC) Copy of the judgment of the Panjab andHariyana 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) 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