TaxTMI 
TaxTMI 
TaxTMI 
2022 (12) TMI 1283
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....l hearing before passing an order under Section 148 A (d) of the Income Tax Act, as would be evident from the expression "opportunity of being heard" employed therein. 3. To the contrary, it is submitted that the learned Standing Counsel for the Respondent submits that the expression"opportunity of being heard" does not indicate that personal hearing is mandatory. 4. The above issue has engaged the attention of various High Courts including Calcutta as well as Gujarat High Court, wherein, it was held as under: (a) The Calcutta High Court in the case of Babcock Borsig Limited Vs Union of India reported in [2022] 141 taxmann.com 85 (Calcutta) while considering the scope of Section 148 A of the Income Tax Act had held that the assessing officer on receipt of the reply shall consider the same and thereafter, afford an opportunity of personal hearing as would be evident from the following passage: "6. In the light of the above, the order dated 30.032022 under Clause (d) of Section 148A of the Act shall be reckoned for reasons for reopening and the appellant assessee is directed to file an objection not later than two weeks from the date of receipt of server copy of this order and a....
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....t of income, the reply of the assessee was duly considered but not found acceptable." 12. In view of the above observation, we are not satisfied by the reasoning part of the impugned order more particularly, when the details were supplied by the petitioner. Hence, we are of the opinion that the matter requires consideration and the same is allowed. The impugned order, dated 31.03.2022 is hereby quashed and set aside. The matter is remitted back to the respondent-Authority. The respondent-Authority shall proceed further with the case under the provisions of sub-Sections (b) and (c) of Section 148A of the Act and shall afford an opportunity of hearing to the petitioner and thereafter pass a detailed order in accordance with law under Section 148A (d) of the Act." (emphasis supplied) 5. This was again reiterated by this Court in the case of Parathasarathy Chitra Vs The Income Tax Officer in W.P(MD).No.10445 of 2022, dated 14.07.2022. The relevant portion from the order reads as under: "12. Considering the submission and perusal of the material, it is seen that the petitioner sent a representation on 11.04.2022. The reply with the documents annexed to it has been uploaded in the ....
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.... are quasi-judicial. Exclusion, however, can either be by a clear provision inferred from the scheme, as also the nature of power which is being exercised. We have : already noticed that the power of the Board which was invoked was discretionary. It was to be exercised on the basis of the recommendation of the Commissioner and the material provided by the assessee. Personal hearing in every situation is not necessary and there can be compliance of the requirements of natural justice of hearing when a right to represent is given and the decision is made on a consideration thereof. Keeping the nature of the power invoked for exercise, the fact that the petitioner had an opportunity to represent its case in writing and the further fact that the Board had taken into consideration the report of the Commissioner in the background that it is not the allegation of the petitioner that the Commissioner's recommendations were different, we do not think in the facts of the case it can be held that the petitioner was entitled to a right of being personally heard before the petition under Section 220(2A) of the Act was disposed of as aforesaid. The petitioner has claimed that he was entitled....
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....ent his case before such quasi-judicial authority who is expected to apply his judicial mind to the issues involved. Of course, if in his own discretion if he requires the appellant or the applicant to be heard because of special facts and circumstances of the case, then certainly it is always open to such authority to decide the appeal or the application only after affording a personal hearing. But any order passed after taking into consideration the points raised in the appeal or the application shall not be held to be invalid merely on the ground that no personal hearing had been afforded. This is all the more important in the context of taxation and revenue matters." 10. Drawing support from the above judgments, the learned Standing counsel for the Respondent would submit that personal hearing may not be a condition precedent before an order is made under Section 148 A (d) of the Income Tax Act under all circumstances. 11. The learned counsel for the respondent, thereafter proceeded to submit that on a reading of Section 148 A of the Income Tax Act as a whole, it would be evident that personal hearing is not mandatory. In this regard, reliance was placed on Section 148 A of t....
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....ncessions given to the assessee could be withdrawn only prospectively, but not retrospectively because, such executive circulars are binding on the authorities, as held by the apex Court in Keshavji Ravji & Co. v. Commissioner of Income-tax, [1990] 183 ITR 1. In Keshavji Ravji & Co. v. Commissioner of Income-tax, [1990] 183 ITR 1, referred supra, while dealing with section 119 of the Income-tax Act, which is pari materia to section 28-A of the Tamil Nadu General Sales Tax Act, the apex Court held that the benefits of such circulars to assessees have been held to be permissible even though the circulars might have departed from the strict tenor of the statutory provision and mitigated the rigour of the law. (ii) In Collector of Central Excise, Patna v. Usha Martin Industries, [1998] 111 STC 254, three-Judge of the apex Court, held that when the Central Board of Excise and Customs made all others to understand a notification in a particular manner and when the latter have acted accordingly, it is not open to the Revenue to turn against such persons on a premise contrary to such instructions, and such circulars would be binding on the department. (iii) The apex Court in Paper Produc....