Case Law Details
K . Viswanath Vs DCIT (Kerala High Court)
Kerala High Court held that before proceeding to issuance of notice u/s 148 of the Income Tax Act, the procedure contemplated u/s 148A needs to be complied. Matter remanded as opportunity for personal hearing not afforded before issuance of order.
Facts-
It is submitted by the petitioner that provisions of Section 148 A of the Income Tax Act, 1961 contemplate that the reply of the petitioner shall be considered and the petitioner shall be heard before the officer, decides to proceed to the step of issuing notice under Section 148 of the Income Tax Act. It is submitted that the procedure has not been complied within this case and the order has been issued without affording to the petitioner an opportunity of being heard.
Conclusion-
Held that before the officer proceeds to the stage of issuance of notice under Section 148 of the Income Tax Act, he has to comply with the procedure contemplated by Section 148 A of the Income Tax Act. However, here the petitioner was not afforded an opportunity for a personal hearing before the order was issued. The provisions of Section 148 A(b) indicate that an order can be issued only after affording an opportunity fora hearing.
Accordingly, the matter is remanded to the file of the 1st respondent, who shall issue fresh orders after following the procedure contemplated by Section 148A(b) of the Income Tax Act and also after affording to the petitioner an opportunity of being heard.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
Petitioner has approached this Court being aggrieved by Ext.P5 order issued under the provisions of Section 148 A of the Income Tax Act, 1961.
2. It is the case of the petitioner that pursuant to P3 notice issued to the petitioner, the petitioner had filed Ext.P4 reply and also sought for personal hearing. It is submitted that provisions of Section 148 A of the Income Tax Act, 1961 contemplates that the reply of the petitioner shall be considered and the petitioner shall be heard before the officer, decides to proceed to the step of issuing notice under Section 148 of the Income Tax Act. It is submitted that the procedure has not been complied within this case and Ext.P5 order has been issued without affording to the petitioner an opportunity of being heard.
3. The learned Standing Counsel appearing for the respondent department points out that the petitioner will get a full opportunity after the notice is issued under Section 148 A of the Income Tax Act and there is absolutely no prejudice caused to the petitioner in the issuance of Ext.P5 order, even assuming without conceding that the same was issued without following prescribed procedure.
4. Having heard the learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the respondent department and on a reading of Section 148 A of the Income Tax Act, 1961, I am of the opinion that before the officer proceeds the stage of issuance of notice under Section 148 of the Income Tax Act, he has to comply with the procedure contemplated by Section 148 A of the Income Tax Act. Ext.P5 does not show that the petitioner was afforded an opportunity of personal hearing before the order was issued. The provisions of Section 148 A(b) indicate that an order can be issued only after affording an opportunity of hearing. Therefore Ext.P5 is quashed. The matter is remanded to the file of the 1st respondent, who shall issue fresh orders after following the procedure contemplated by Section 148A(b) of the Income Tax Act and also after affording to the petitioner an opportunity of being heard. The petitioner shall appear before the 1st respondent at 11 A.M. on 21-1 1-2022. The 1st respondent shall thereafter hear the petitioner and take a fresh 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 21-1 1-2022.
The writ petition is disposed of as above.
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