Bharat Saikia, Sonitpur V. Assistant Commissioner of Income Tax, Circle-Tezpur, Tezpur

ITA 100/GTY/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0545 (ITAT-GUWAHATI)
• Duration Of Justice: 1 year(s) 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-06-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 18-03-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M K DAL
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 250; 69A; 22; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL GAUHATI ECOURT, AT KOLKATA BEFORE SHRI A. T. VARKEY, JM &DR. A.L.SAINI, AM ./ITA NO.100/GAU/2019 ( / ASSESSMENT YEAR:2014-15) BHARAT SAIKIA WARD NO. 5, P.O. DHEKIAJULI, DISTRICT SONITPUR, ASSAM 784110. VS. ACIT, TEZPUR ./ ./PAN/GIR NO.: BUWPS 1037 C (ASSESSEE) .. (REVENUE) ASSESSEE BY :NONE RESPONDENT BY : SHRI M.K. DAL, ADDL. CIT, SR. DR / DATE OF HEARING : 08/06/2020 /DATE OF PRONOUNCEMENT : 17/06/2020 / O R D E R PER DR. A. L. SAINI: THE CAPTIONED APPEAL FILED BY THE ASSESSEE PERTA INING TO ASSESSMENT YEAR 2014-15, IS DIRECTED AGAINST THE ORDER PASSED BY TH E COMMISSIONER OF INCOME TAX (APPEAL)-1, GUWAHATI, WHICH IN TURN ARISES OUT OF A N ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 147 OF THE INCOME TAX AC T, 1961 (IN SHORT THE ACT) DATED 05.12.2017. 2. GROUNDS OF APPEAL RAISED BY THE ASSESSEEARE AS F OLLOWS: 1. BECAUSE THE LD. CIT(A) ERRED IN LAW IN PASSING THE ORDER U/S 250 OF THE I.T. ACT, 1961 WITHOUT FOLLOWING THE PROCEDURES, ST ANDARDS & FORMATS FOR ENSURING SERVICE TRANSMISSION OF ELECTRONIC COMMUNI CATION. SINCE THE APPELLANT DID NOT RECEIVE ANY COMMUNICATION OF FIXA TION OF HEARINGS THE LD. CIT(A) ALSO ERRED IN FACTS IN OBSERVING THAT THE AP PELLANT EITHER DID NOT WANT TO PERSECUTE THE APPEAL OR WAS ALREADY AWARE O F THE FATE. 2. BECAUSE THE LD. CIT(A) WAS NOT JUSTIFIED IN CONF IRMING THE ADDITION OF RS. 7,30,090/- AS UNEXPLAINED MONEY U/S 69A OF THE I.T. ACT, 1961 BASING ON BHARAT SAIKIA ITA NO.100/GAU/2019 ASSESSMENT YEAR:2014-15 P PP PA AA AG GG GE EE E | || | 2 22 2 SEVERAL DECISION ONLY WITHOUT GIVING ANY OPPORTUNIT Y TO EXPLAIN THE CASE DEPRIVING THE ASSESSEE OF NATURAL JUSTICE. 3.THE ASSESSEE CRAVES LEAVE AND TO ACT/ALTER ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 3. WE NOTE THAT THE MAIN GRIEVANCE OF THE ASSESSEE IN GROUND NO. 1 IS THAT HE DID NOT RECEIVE THE NOTICE OF HEARING DURING THE APPELL ATE PROCEEDINGS FROM THE LD. CIT(A),THEREFORE, HE COULD NOT ATTEND THE HEARING B EFORE THE LD. CIT(A). WE NOTE THAT THE HONBLE SUPREME COURT IN M.S.GILL VS THE C HIEF ELECTION COMMISSION 1978 AIR SC 851 HELD THE DICHOTOMY BETWEEN ADMINIS TRATIVE AND QUASI-JUDICIAL FUNCTION VIS--VIS THE DOCTRINE OF NATURAL JUSTICE IS PRESUMABLY OBSOLESCENT AFTER KRAIPAK (A.K. KRAIPAK VS UOI AIR 1970 SC 150) WHIC H MAKES THE WATER-SHED IN THE APPLICATION OF NATURAL JUSTICE TO ADMINISTRATIV E PROCEEDINGS. THE RULES OF NATURAL JUSTICE ARE ROOTED IN ALL LEGAL SYSTEMS AND ARE NOT ANY NEW THEOLOGY. THEY ARE MANIFESTED IN THE TWIN PRINCIPLES OF NEMO JUDEX IN PARTESUA ( NO PERSON SHALL BE A JUDGE IN HIS OWN CASE) AND AUDIALTEREM PARTEM (THE RIGHT TO BE HEARD). IT HAS BEEN POINTED OUT THAT THE AIM OF NATURAL JUSTICE IS TO SECURE JUSTICE. 4. NONE APPEARED ON BEHALF OF THE ASSESSEE. WE HAVE HEARD LD DR FOR THE REVENUE AND WE NOTE THAT ASSESSEE HAS FILED THE APPEAL BEFO RE LD. CIT(A) BUT HE DID NOT GET OPPORTUNITY OF BEING HEARD; THEREFORE IT WOULD BE V IOLATION OF PRINCIPLE OF NATURAL JUSTICE.SINCE THE ASSESSEE DID NOT RECEIVE ANY COMM UNICATION DURING THE APPELLATE PROCEEDINGS ABOUT FIXATION OF HEARINGS THEREFORE AS SESSEE COULD NOT ATTEND THE HEARING BEFORE THE LD CIT(A).WE NOTE THAT IT IS SET TLED LAW THAT PRINCIPLES OF NATURAL JUSTICE AND FAIR PLAY REQUIRE THAT THE AFFECTED PAR TY IS GRANTED SUFFICIENT OPPORTUNITY OF BEING HEARD TO CONTEST HIS CASE. WE NOTE THAT LD DR FOR THE REVENUE HAS FAIRLY AGREED THAT THIS LIS MAY BE RESTORED BACK TO THE FI LE OF LD CIT(A) FOR FRESH ADJUDICATION. THEREFORE, IN THE INTEREST OF JUSTICE, WE DEEM IT F IT AND PROPER TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE LD. CIT(A) TO PASS A SPEAKING ORDER AFTER AFFORDING SUFFICIENT OPPORTUNI TY OF BEING HEARD TO THE BHARAT SAIKIA ITA NO.100/GAU/2019 ASSESSMENT YEAR:2014-15 P PP PA AA AG GG GE EE E | || | 3 33 3 ASSESSEE,AND TO ADJUDICATE THE ISSUE AFRESH ON MERI TS. FOR STATISTICAL PURPOSES, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 17 .06.2020 SD/- SD/- ( A.T. VARKEY ) (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATE:17/06/2020 ( BISWAJIT, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. BHARAT SAIKIA. 2. ACIT, TEZPUR. 3. C.I.T(A)- 4. C.I.T.- GUWAHATI 5. CIT(DR), GAUHATIBENCH, GUWAHATI. 6. GUARD FILE. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY / DDO / H. O. O ITAT, GAUHA TI BENCH