Wp(C)/11456/2022 Of K.viswanath v. Deputy Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. THURSDAY, THE 10 DAY OF NOVEMBER 2022 / 19TH KARTHIKA, 1944WP(C) NO. 11456 OF 2022 PETITIONER: K.VISWANATHAGED 64 YEARSXHOUSE NO 34/572, PADIVATTOM, ERNAKULAM, COCHIN- 682 024 BY ADV TOMSON T.EMMANUEL RESPONDENTS: 1DEPUTY COMMISSIONER OF INCOME TAXCORPORATE CIRCLE 1 (1), CENTRAL REVENUE BUILDING, I S PRESS ROAD, COCHIN 682 018CORPORATE CIRCLE 1 (1), CENTRAL REVENUE BUILDING, I S PRESS ROAD, COCHIN 682 018 2PRINCIPAL COMMISSIONER OF INCOME TAX-1INCOME TAX DEPARTMENT, CENTRAL REVENUE BUILDING, IS PRESS ROAD, COCHIN -682 018INCOME TAX DEPARTMENT, CENTRAL REVENUE BUILDING, IS PRESS ROAD, COCHIN -682 018 3THE UNION OF INDIAMINISTRY OF FINANCE (DEPARTMENT OF REVENUE), NORTH BLOCK, NEW DELHI – 110 001.REPRESENTED BY THE SECRETARY. BY ADV SHRI.B.RAMACHANDRAN, CGC OTHER PRESENT: ADV. CHRISTOPHER ABRAHAM (SC) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON10.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT Petitioner has approached this Court being aggrieved byExt.P5 order issued under the provisions of Section 148 A ofthe Income Tax Act, 1961. 2.It is the case of the petitioner that pursuant toExt.P3 notice issued to the petitioner, the petitioner had filedExt.P4 reply and also sought for personal hearing. It issubmitted that provisions of Section 148 A of the Income TaxAct, 1961 contemplates that the reply of the petitioner shallbe considered and the petitioner shall be heard before theofficer, decides to proceed to the step of issuing notice underSection 148 of the Income Tax Act. It is submitted that theprocedure has not been complied within this case and Ext.P5order has been issued without affording to the petitioner anopportunity of being heard. 3.The learned Standing Counsel appearing for therespondent department points out that the petitioner will geta full opportunity after the notice is issued underSection 148 A of the Income Tax Act and there is absolutelyno prejudice caused to the petitioner in the issuance of Ext.P5 order, even assuming without conceding that the same wasissued without following prescribed procedure. 4.Having heard the learned counsel appearing for thepetitioner and the learned Standing Counsel appearing forthe respondent department and on a reading of Section 148 Aof the Income Tax Act, 1961, I am of the opinion that beforethe officer proceeds the stage of issuance of notice underSection 148 of the Income Tax Act, he has to comply with theprocedure contemplated by Section 148 A of the Income TaxAct. Ext.P5 does not show that the petitioner was afforded anopportunity of personal hearing before the order was issued.The provisions of Section 148 A(b) indicate that an order canbe issued only after affording an opportunity of hearing.Therefore Ext.P5 is quashed. The matter is remanded to thefile of the 1st respondent, who shall issue fresh orders afterfollowing the procedure contemplated by Section 148A(b) ofthe Income Tax Act and also after affording to the petitioneran opportunity of being heard. The petitioner shall appearbefore the 1st respondent at 11 A.M. on 21-11-2022. The 1strespondent shall thereafter hear the petitioner and take afresh decision after considering the reply and any document produced by the petitioner in response to Ext.P3 notice,within a period of one month from 21-11-2022. The writ petition is disposed of as above. ats Sd/- GOPINATH P.JUDGE APPENDIX OF WP(C) 11456/2022 PETITIONER EXHIBITS Exhibit P1TRUE COPY OF TAX INVOICE NO HT/P/OCT/28/001 DATED 28-10-2017 ISSUED BY M/S. HETVI TRADINGLLP, SURAT FOR INTERSTATE PURCHASE OF CUT ANDPOLISHED DIAMONDDATED 28-10-2017 ISSUED BY M/S. HETVI TRADINGLLP, SURAT FOR INTERSTATE PURCHASE OF CUT ANDPOLISHED DIAMOND produced by the petitioner in response to Ext.P3 notice,within a period of one month from 21-11-2022. The writ petition is disposed of as above. ats Sd/- GOPINATH P.JUDGE APPENDIX OF WP(C) 11456/2022 PETITIONER EXHIBITS Exhibit P1TRUE COPY OF TAX INVOICE NO HT/P/OCT/28/001 DATED 28-10-2017 ISSUED BY M/S. HETVI TRADINGLLP, SURAT FOR INTERSTATE PURCHASE OF CUT ANDPOLISHED DIAMONDDATED 28-10-2017 ISSUED BY M/S. HETVI TRADINGLLP, SURAT FOR INTERSTATE PURCHASE OF CUT ANDPOLISHED DIAMOND Exhibit P2TRUE COPY OF INCOME TAX RETURN SUBMITTED ON 10-10-2018 BY THE PETITIONER FOR AY 2018-19 ALONG WITH STATEMENT OF INCOME TAX10-10-2018 BY THE PETITIONER FOR AY 2018-19 ALONG WITH STATEMENT OF INCOME TAX Exhibit P3TRUE COPY OF NOTICE UNDER CLAUSE (B) OF SEC. 148A OF INCOME TAX ACT ISSUED BY 1ST RESPONDENT FOR AY 2018-19148A OF INCOME TAX ACT ISSUED BY 1ST RESPONDENT FOR AY 2018-19 Exhibit P4TRUE COPY OF REPLY DATED 10-03-2022 SUBMITTEDUNDER IN THE ONLINE ONLINE PORTAL, AGAINST EXT P3 NOTICE, WITH A REQUEST FOR PERSONAL HEARINGUNDER IN THE ONLINE ONLINE PORTAL, AGAINST EXT P3 NOTICE, WITH A REQUEST FOR PERSONAL HEARING Exhibit P4ATRUE COPY OF RELEVANT PAGE OF AUDITED TRADINGPROFIT AND LOSS ACCOUNT FOR THE YEAR ENDED 31-03-2018 ATTACHED ALONG WITH EXT P4 REPLYPROFIT AND LOSS ACCOUNT FOR THE YEAR ENDED 31-03-2018 ATTACHED ALONG WITH EXT P4 REPLY Exhibit P4BTRUE COPY OF BANK STATEMENT ATTACHED ALONG WITH EXT P4 REPLY TOWARDS PAYMENT MADE BY PTGS AGAINST EXT P1 TAX INVOICEWITH EXT P4 REPLY TOWARDS PAYMENT MADE BY PTGS AGAINST EXT P1 TAX INVOICE Exhibit P4CTRUE COPY OF LEDGER ACCOUNT MAINTAINED WITH THE SUPPLIER AGAINST EXT P1 PURCHASE, ATTACHED ALONG WITH EXT P4 REPLYTHE SUPPLIER AGAINST EXT P1 PURCHASE, ATTACHED ALONG WITH EXT P4 REPLY Exhibit P4DTRUE COPY OF LEDGER ACCOUNT FOR 3% INTERSTATEPURCHASE, ATTACHED ALONG WITH EXT P4 REPLYPURCHASE, ATTACHED ALONG WITH EXT P4 REPLY Exhibit P5TRUE COPY OF ORDER UNDER CLAUSE (D) OF SEC. 148A OF INCOME TAX ACT PASSED BY 1ST 148A OF INCOME TAX ACT PASSED BY 1ST RESPONDENT, MECHANICALLY, WITHOUT AFFORDING PERSONAL HEARING.PERSONAL HEARING. Exhibit P6TRUE COPY OF DECISION REPORTED IN (2010) 320 ITR 561 PASSED BY SUPREME COURT IN ITR 561 PASSED BY SUPREME COURT IN COMMISSIONER OF INCOME TAX VS. KELVINATOR OF INDIA LTD, IN DISMISSING THE APPEAL FILED BY THE DEPARTMENT FOR WANT OF TANGIBLE MATERIAL INDIA LTD, IN DISMISSING THE APPEAL FILED BY THE DEPARTMENT FOR WANT OF TANGIBLE MATERIAL FOR THE FORAMTION OF THE VELIEF