SHRI RAJENDRA KUMAR SINGH, Bhopal V. THE ITO 3(2), Bhopal

ITA 103/IND/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99158 (ITAT-INDORE)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 18-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: N D PATWA S
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE (SINGLE MEMBER CASE) BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER I.T.A.NO.103/IND/2015 A.Y. : 2009-10 SHRI RAJESH KUMAR SINGH, BHOPAL VS. ITO, 3(2), BHOPAL APPELLANT RESPONDENT PAN NO. AQYPS1674E A PPELLANT S BY : SHRI ASHISH GOYAL AND SHRI N. D. PATWA, ADVOCATES RESPONDENT BY : SHRI R. A. VERMA, DR O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A)-II, BHOPAL, DATED 21.10.2014 FOR THE ASSE SSMENT YEAR 2009-10. DATE OF HEARING : 15 .12. 2015 . DATE OF PRONOUNCEMENT : 15 . 1 2 .2015 SHRI RAJESH KUMAR SINGH, BHOPAL. VS. ITO, 3(2), BHO PAL - I.T.A.NO. 103/IND/2015 A.Y.2009-10. 2 2 2. THERE WAS DELAY IN FILING THE APPEAL BY 35 DAYS. TH E PHOTOCOPY OF AFFIDAVIT TO THIS EFFECT WAS ALSO FILE D. THE ASSESSEE SUBMITTED IN HIS LETTER THAT THE ORDER WAS RECEIVED BY HIM ON 15.11.2014 AND FOR FILING THE APPEAL THE PRE SCRIBED TIME WAS 13.1.2015. THE APPEAL WAS FILED ON 18.02. 2015 AND AS SUCH THE DELAY WAS OCCURRED FOR 35 DAYS. THE ASS ESSEE FURTHER SUBMITTED THAT THE DELAY WAS ARISEN DUE TO THE FACT THAT THE COUNSEL WAS CHANGED, WHO APPEARED BEFORE T HE LD.CIT(A). THERE WAS MISCOMMUNICATION FROM THE COUN SEL. THE ASSESSEE PRAYED THAT THE DELAY MAY PLEASE BE CONDON ED AS IT WAS ATTRIBUTABLE TO THE PREVIOUS COUNSEL. 3. I HAVE PERUSED THE WRITTEN SUBMISSION AS WELL AS AFFIDAVIT SWORN BY THE ASSESSEE. I FIND THAT THE DE LAY WAS CAUSED DUE TO CHANGE OF COUNSEL AND THERE WAS MISCOMMUNICATION BETWEEN HIM AND THE ASSESSEE. I, T HEREFORE, CONDONE THE DELAY OF 35 DAYS, AS IT WAS DUE TO REAS ONABLE CAUSE. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S AN INDIVIDUAL AND HAS FILED RETURN U/S 139(1) OF THE A CT AND DECLARED TOTAL INCOME OF RS. 3,66,712/- FROM THE SA LARY AND SHRI RAJESH KUMAR SINGH, BHOPAL. VS. ITO, 3(2), BHO PAL - I.T.A.NO. 103/IND/2015 A.Y.2009-10. 3 3 OTHER SOURCES. THE AO ON THE BASIS OF AIR INFORMA TION HAS SELECTED THE CASE FOR SCRUTINY AND ISSUED THE NOTIC E U/S 143(2) OF THE ACT. THE ASSESSEE SUBMITTED REPLY, BUT DUE T O HASTY APPROACH, AO PASSED THE ORDER U/S 143(2) OF THE ACT WITHOUT GIVING PROPER OPPORTUNITY. THE ASSESSEE SUBMITTED R EPLY AND JUSTIFICATION OF CASH DEPOSITS IN THE CORRESPONDING BANK ACCOUNTS, BUT THE AO DID NOT ACCEPT JUSTIFICATION A ND MADE THE ADDITION OF RS. 6,70,335/- DURING THE YEAR AS UNDIS CLOSED INCOME U/S 69C. 5. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. C IT(A) CONFIRMED THE ADDITION OF RS. 6,70,335/-. 6. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT NO PROPER OPPORTUNITY WAS GIVEN TO THE ASSESSEE AND TH E MATTER MAY BE RESTORED BACK TO THE FILE OF CIT(A). 7. THE LD. D.R. DID NOT OBJECT TO IT. 8. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PART IES. THE PRINCIPLE OF AUDI ALTERAM PARTEM IS THE BASIC CONCEPT OF NATURAL JUSTICE. THE EXPRESSION AUDI ALTERAM PARTEM IMPLIES THAT A PERSON MUST BE GIVEN OPPORTUNITY TO DEFEND H IMSELF. THIS PRINCIPLE IS SINE QUA NON OF EVERY CIVILIZED SOCIETY. THE SHRI RAJESH KUMAR SINGH, BHOPAL. VS. ITO, 3(2), BHO PAL - I.T.A.NO. 103/IND/2015 A.Y.2009-10. 4 4 RIGHT TO NOTICE, RIGHT TO PRESENT CASE AND EVIDENCE , RIGHT TO REBUT ADVERSE EVIDENCE, RIGHT TO CROSS EXAMINATION, RIGHT TO LEGAL REPRESENTATION , DISCLOSURE OF EVIDENCE TO PA RTY, REPORT OF ENQUIRY TO BE SHOWN TO THE OTHER PARTY AND REASONED DECISIONS OR SPEAKING ORDERS. I FIND THAT THE RIGHT OF HEARIN G IS DECIDED BY THE HON'BLE SUPREME COURT IN THE CASE OF MANEKA GANDHI VS. UNION OF INDIA, WHEREIN HON'BLE SUPREME COURT H AS HELD THAT RULE OF FAIR HEARING IS NECESSARY BEFORE PASSI NG ANY ORDER. I FIND THAT IT IS PRE-DECISION HEARING STANDARD OF NORM OF RULE OF AUDI ALTERM PARTEM. I FIND THAT IN THIS INSTANT CASE, THE ASSESSEE WAS NOT GIVEN PROPER HEARING. THEREFORE, I AM OF THE VIEW THAT THE ASSESSEE MUST BE GIVEN ONE MORE OPPOR TUNITY OF HEARING AND TO REPRESENT HIS CASE. THEREFORE, I ALL OW THIS APPEAL. THE ASSESSEE IS DIRECTED TO REMAIN PRESENT BEFORE THE LD. CIT(A) WITHIN 2 MONTHS AFTER THE RECEIPT OF THI S ORDER. THE LD. CIT(A) SHOULD DECIDE THE APPEAL AFTER GIVING DU E OPPORTUNITY OF HEARING TO THE ASSESSEE AS PER LAW. 9. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICA L PURPOSES. SHRI RAJESH KUMAR SINGH, BHOPAL. VS. ITO, 3(2), BHO PAL - I.T.A.NO. 103/IND/2015 A.Y.2009-10. 5 5 THIS ORDER HAS BEEN PRONOUNCED IN THE OP EN COURT ON 15TH DECEMBER, 2015. SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 15 TH DECEMBER, 2015. CPU*