Wp(C)/29108/2023 Of Bahuleyan Nair v. The Deputy Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH TUESDAY, THE 5 DAY OF SEPTEMBER 2023 / 14TH BHADRA, 1945WP(C) NO. 29108 OF 2023 PETITIONER: BAHULEYAN NAIRAGED 62 YEARSS/O. KUNJUKRISHNA PILLAI, PALLIPURAM, THIRUVANANTHAPURAM, KERALA, PIN – 695 316. BY ADVS.ASWIN GOPAKUMARANWIN GOPAKUMARSARANYA BABUADITYA VENUGOPALANNIKITHA SUSAN PAULSONMAHESH CHANDRANSHALLET K. SAM RESPONDENTS: THE DEPUTY COMMISSIONER OF INCOME TAXTHE OFFICE OF THE ASSISTANT COMMISSIONER OF INCOME TAX, DCIT CIRCLE INTL. TAX, THIRUVANANTHAPURAM, KERALA, PIN – 695 003. THE OFFICE OF THE ASSISTANT COMMISSIONER OF INCOME TAX, OTHER PRESENT: Jose Joseph -SC, Income Tax Department, Kerala THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON05.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DINESH KUMAR SINGH, J. -------------------------------------------- WP(C) NO. 29108 OF 2023-------------------------------------------- Dated this the 05[th] day of September, 2023 J U D G M E N T 1.Heard Smt. Nikitha Susan Paulson, Learned Counsel forthe petitioner and Sri. Jose Joseph, Learned Standing Counsel forIncome 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 Section148A (d) of the Income Tax Act, 1961 without providing thepetitioner an opportunity of being heard. 3.The petitioner is a Non – Resident Indian (NRI). Theclaim of the petitioner is that the petitioner is carrying out business inSharjah (UAE). 4.The petitioner was received a notice dated 07.03.2023 under Section 148A (b) of the Income Tax Act requiring him to showcause as to why, in view of the annexure enclosed with the notice, anotice under Section 148 of the Income Tax Act should not be issued. 5.The petitioner filed reply to the said notice taking various ground that the Show Cause notice was not maintainable as Section149 of the Income Tax Act specifically provided that unless entries inthe books of accounts which has escaped assessment is more thanRs.50,00,000/- (Rupees Fifty Lakhs only), no notice can be issuedfor an assessment year. The petitioner was not provided any facility ofbeing heard in person and no consideration of the reply, the impugnedorder Ext. P3 and Ext. P4 Notice was passed. Section 148 A (b) of theIncome Tax Act especially provides the opportunity of being heard tothe assessee by serving him with a notice. There is no opportunity ofbeing heard provided to the petitioner, issued Ext.P3 Order andthereafter Ext.P4 Notice which are unsustainable. 6. The present petition is allowed. The impugned orderExt.P3 and Ext.P4 Notice are set aside. The matter is remanded backto the respondents to pass a fresh order, after giving an opportunity ofbeing heard to the petitioner. The present petition is allowed. The impugned order 7. With the aforesaid directions, the writ petition is allowed. Sd/-DINESH KUMAR SINGHJUDGE APPENDIX OF WP(C) 29108/2023 PETITIONER’S EXHIBITS