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of <h1>Income Tax Department not required to provide personal hearing under Section 148A(b) show cause notices</h1> The Bombay HC held that a show cause notice under Section 148A(b) does not mandatorily require a personal hearing, as the statute lacks specific language ... Validity of reopening of assessment - Re-opening notice u/s 148A(d) - personal hearing refused - whether personal hearing’ in addition to the show cause notice of hearing, is not mandated? - HELD THAT:- Not a single judgment has been cited before us specifically taking up the issue of interpretation of Section 148(b) with regards to whether a show cause notice of hearing would mean and necessarily include a personal hearing or for interpreting the said provision in a manner different than the view being taken by us. When the specific words “and a personal hearing” having not been engrafted in Section 148A(b) and since sub-clause ‘c’ indicates that the reply tendered by the Assessee has to be considered before passing an order u/s 148(d), we conclude that it is not the mandate of Law that a show cause notice u/s 148A (b) would necessarily and mandatorily include a personal hearing. The Income Tax Department, on it’s own volition or on a request made by the Assessee, may grant a personal hearing. However, refusal to grant a personal hearing would not mean that the assessee has been deprived of an opportunity of hearing, in the absence of any specific provision or the language in the statute book mandating such a hearing. Enquiry to be conducted before issuance of a notice by the AO u/s 148A(a) - contention of the Petitioner is that the enquiry is mandatory - HELD THAT:- Under clause (b), an opportunity of being heard is to be provided to the Assessee. Clause (c) requires that the reply of the Assessee has to be taken into account and clause (d) requires an order to be passed for forming an opinion that a notice u/s 148 has to be issued, on the basis of the material available on record, which includes the reply of the Assessee. In the absence of any specific judicial pronouncement dealing with the aspect of interpretation on this issue, considering the language of the provision and noticing the law enunciated in the above discussed reports, we are of the view that the words “if required” have been set out in 148A(a) so as to leave it to the discretion of the Assessing Officer as to whether he desires to conduct an enquiry. If the Legislature had the intent and object of mandating an enquiry before issuing a show cause notice under clause (b), the Legislature would not have specifically used the words “if required”, following the words “conduct an enquiry”. In these circumstances, if a harmonious interpretation is to be arrived at without rendering the words “if required” meaningless, in our view, the word ‘shall’ would mean ‘may’ as Section 148A(a) grants discretion to the Assessing Officer to conduct an enquiry. We, however, deem it appropriate to record that since Section 148 permits an assessee to raise all issues at the time of the hearing. in view of the pronouncement of the Hon’ble Supreme Court in Anshul Jain [2022 (10) TMI 3 - SC ORDER] the Department shall follow the due procedure laid down in Law and ensure that the Petitioners are extended an adequate and reasonable opportunity to contest the notice u/s 148, as is permissible in Law. Issues Involved:1. Whether Section 148A(b) of the Income Tax Act mandates a personal hearing for the Assessee.2. Whether an enquiry is mandatory before issuing a notice under Section 148A(a) of the Income Tax Act.First Issue - Personal Hearing:The Petitioners contended that Section 148A(b) requires a personal hearing as part of the opportunity of being heard. The Court noted that Section 148A(b) mandates serving a show cause notice within a specified time but does not explicitly mention 'personal hearing.' The Court emphasized the principle of statutory interpretation that plain language should be given its ordinary meaning and should not be extended beyond what is written. The Court cited several judgments, including those from the Calcutta and Delhi High Courts, which addressed the issue of personal hearing but did not specifically interpret Section 148A(b) as mandating it. The Court concluded that a personal hearing is not mandated by Section 148A(b), though the Income Tax Department may grant it at its discretion.Second Issue - Enquiry:The Petitioners argued that an enquiry is mandatory before issuing a notice under Section 148A(a). The Court examined the language of Section 148A(a), which states that the Assessing Officer 'shall conduct any enquiry, if required.' The Court interpreted the words 'if required' as granting discretion to the Assessing Officer to decide whether an enquiry is necessary. The Court supported this interpretation by citing the Supreme Court's judgment in Anshul Jain and other relevant case law, concluding that the word 'shall' in this context means 'may,' thus making the enquiry discretionary rather than mandatory.Conclusion:The Court disposed of both petitions, concluding that:1. Section 148A(b) does not mandate a personal hearing.2. The enquiry under Section 148A(a) is discretionary and not mandatory.The Court also emphasized that the Income Tax Department must follow due procedure and ensure that the Petitioners are given a reasonable opportunity to contest the notice under Section 148. All contentions of the parties remain open for consideration.
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