Prakash Sha & Mihir Mehta & Mohan Maiya G.L., Adv. for the Petitioner. E.I. Sanmathi, ASG for the Respondent.

The petitioner is a company incorporated under the Companies Act, 1956 and is engaged in the business of providing cars to customers on a self drive basis on receipt of consideration for a fixed duration of time as chosen by customers. Respondent No.3 for the purpose of re-assessing the returns filed by the petitioner issued notice under Section 148A(a) (of Income Tax Act, 1961) dated 15.03.2022 bearing No. ITBA/AST/F/17/2021-22/1040760885(1) vide Annexure – A to the writ petition. Subsequently, notice under clause (b) of Section 148A (of Income Tax Act, 1961), was issued on 23.03.2022, which is produced at Annexure – B. Thereafter, on 07.04.2022 order was passed under clause (d) of Section 148A (of Income Tax Act, 1961) bearing No.ITBA/AST/F/148a/2022- 23/1042608198(1) dated 07.04.2022 vide Annexure – D to the writ petition and the respondent No.3 has come to the conclusion that under the given facts and circumstances, the case of the petitioner herein is a fit case for issuance of notice under Section 148 (of Income Tax Act, 1961) for the assessment year 2018-2019. Aggrieved by the same, the instant writ petition is filed.

2. Apart from other things, it is contended by the petitioner that it was not given an opportunity of hearing as contemplated under Section 148A(b) (of Income Tax Act, 1961) before passing the impugned order under clause (d) of Section 148A (of Income Tax Act, 1961).

3. Though the impugned order at Annexure – D records that an opportunity of being heard as per provision of Section 148A(b) (of Income Tax Act, 1961) was provided to the assessee with a prior approval by the competitive authority, the advocate appearing for the respondents is not in a position to state whether the said opportunity was granted or not and there is no material on record to show as to an opportunity of being heard is granted to the petitioner, which is mandatory as per Section 148A(b) (of Income Tax Act, 1961) before passing of the impugned order under Section 148A(d) (of Income Tax Act, 1961).

4. Under the circumstances, this is a matter which deserves to be remanded on the short question of petitioner not being given an opportunity of being heard.

5. Hence, the following:

ORDER

i. Order dated 07.04.2022 bearing No.ITBA/ AST/F/148A/2022-23/1042608198(1) vide Annexure – D to the writ petition is hereby set aside.

ii. Notice under Section 148 (of Income Tax Act, 1961), dated 07.04.2022 bearing No. ITBA/AST/S/148_1/2022-23/1042611645 vide Annexure – C to the writ petition is also set aside, which is pursuant to order at Annexure – D.

iii. The matter is remanded to respondent No.3 to consider the case of the petitioner afresh after giving an opportunity of hearing to the petitioner in accordance with law and thereafter take appropriate decision.

iv. The petitioner is directed to appear before respondent No.3 on 23.06.2022 without further notice.

The writ petition is disposed of accordingly.

Sd/-

JUDGE