Smt. Sarita Gupta, Ludhiana V. ACIT, Ludhiana

ITA 1050/CHANDI/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 95719 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 16-12-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 18-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Keywords: Opportunity of being heard; Principle of natural justice; Right to appeal
• Section: 143(3)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, CHANDIGARH BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT & MS. RANO JAIN, ACCOUNTANT MEMBER ITA NO. 1050/CHD/2013 ASSESSMENT YEAR: 2005-06 SH. SANJEEV GUPTA, VS. THE ACIT, CENTRAL CIRCLE- 1, L/H OF LATE SMT. SARITA GUPTA, LUDHIANA LUDHIANA (APPELLANT) (RESPONDENT) APPELLANT BY : SH. ASHWANI KUMAR RESPONDENT BY : SH. S.K.MITTAL DATE OF HEARING : 29.10.2015 DATE OF PRONOUNCEMENT : 27 .11.2015 ORDER PER H.L.KARWA, VP THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 13.09.2013 OF CIT(A)-II, LUDHIANA RELATING TO ASSES SMENT YEAR 2005-06. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLOWING GROUND S:- 1. THAT ASSESSMENT ORDER IS AGAINST LAW AND FACTS ON THE FILE IN AS MUCH AS THE LD. CIT(A) WAS NOT JUSTIFIED D TO DECIDE THE APPEAL EX-PARTE. 2. THAT HE WAS FURTHER NOT JUSTIFIED TO UPHOLD THE ADDITION OF RS. 10,23,180/- BY HOLDING THAT THE CRE DITS REPRESENTED APPELLANTS OWN MONEY. 3. THAT THE LD. CIT(A) WAS FURTHER NOT JUSTIFIED T O UPHOLD THE ADDITION OF RS. 5,09,358/- ON ACCOUNT OF ALLEGED INCOME BY WAY OF COMMISSION. 2 2. VIDE GROUND NO.1 OF THE APPEAL, THE ASSESSEE HAS CHALLENGED THE ACTION OF THE CIT(A) IN DECIDING THE APPEAL OF THE ASSESSEE EX.PARTE. FIRSTLY, WE WILL DECIDE THIS ISSUE WHICH GOES TO THE ROUTE OF THE MA TTER. 3. IN THIS CASE, THE ASSESSING OFFICER FRAMED THE A SSESSMENT U/S 143(3) OF THE ACT VIDE HIS ORDER DT 13.12.2007 AND IN THE ASSESSM ENT ORDER, THE ASSESSING OFFICER MADE CERTAIN ADDITIONS / DISALLOWANCES. THE ASSESSEE CHALLENGED THE ASSESSMENT ORDER BY WAY OF AN APPEAL BEFORE THE CIT (A) AND THE LD. CIT(A) WITHOUT AFFORDING ADEQUATE OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE DISMISSED THE APPEAL OF THE ASSESSEE EX.PARTE. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS. AT THE VERY OUTSET, SHRI ASHWANI KUMAR LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE LD. CIT(A) HAS NOT AFFORDED AN ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE PASSING THE IMPUGNED ORDER. IT WAS SUBMITTED THAT THE LD. C IT(A) VIOLATED THE PRINCIPLE OF NATURAL JUSTICE. IN THE CASE OF RADHIKA CHARAN B ANERJEE V SAMBALPUR MUNICIPALITY, AIR 1979 ORI 69 WHEREIN THE HON'BLE H IGH COURT HELD THAT A RIGHT OF APPEAL WHEREVER CONFERRED INCLUDES A RIGHT OF BEING AFFORDED AN OPPORTUNITY OF BEING HEARD, IRRESPECTIVE OF THE LAN GUAGE CONFERRING SUCH RIGHT. THAT IS A PART AND PARCEL OF THE PRINCIPLE O F NATURAL JUSTICE. WHERE AN AUTHORITY IS REQUIRED TO ACT IN A QUASI-JUDICIAL CA PACITY, IT IS IMPERATIVE TO GIVE THE APPELLANT AN ADEQUATE OPPORTUNITY OF BEING HEARD BEFORE DECIDING THE APPEAL. OPPORTUNITY OF HEARING DOES NOT ALWAYS NECESSARILY MEAN GIVING A PERSONAL HEARING. A WRITTEN REPRESENTATION, IF COMP LETE AND ELABORATE IN ALL RESPECTS FULLY EXPLAINING THE POINTS OF VIEW OF THE APPELLANT, WHEN ACCEPTED MAY, IN SOME CASES, AMOUNT TO AFFORDING OPPORTUNITY OF HEARING. WHAT PARTICULAR RULE OF NATURAL JUSTICE SHOULD APPLY TO A GIVEN CASE MUST ALSO DEPEND TO A GREAT EXTENT ON THE FACTS AND CIRCUMSTA NCES OF THAT CASE. IN THAT VIEW OF THE MATTER, IT WAS HELD THAT WHERE NO EFFEC TIVE OPPORTUNITY OF BEING 3 HEARD WAS GIVEN TO THE APPELLANT IN DISPOSING OF HI S APPEAL INSPITE OF HIS EXPRESS REQUEST THAT HIS COUNSEL SHOULD BE HEARD, T HE ORDER MUST BE QUASHED. 5. CONSIDERING THE FACTS OF THE PRESENT CASE, SUBMI SSIONS MADE ON BEHALF OF THE ASSESSEE AND ALSO THE SETTLED LEGAL POSITION, W E THINK IT APPROPRIATE TO SET ASIDE THE ORDER OF CIT(A) IN TOTO AND REMAND THE MA TTER TO THE CIT(A) WITH THE DIRECTIONS TO DECIDE THE APPEAL OF THE ASSESSEE AFR ESH IN ACCORDANCE WITH LAW AFTER AFFORDING DUE AND REASONABLE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. THE LD. CIT(A) IS DIRECTED TO DECIDE THE APPEAL OF THE ASSESSEE PREFERABLY WITHIN FOUR MONTHS FROM THE DATE OF RECEIPT OF COPY OF THIS ORDER. 6. AT THIS STAGE, WE ARE NOT OFFERING ANY COMMENTS ON THE MERITS OF THE CASE. 7. FOR STATISTICAL PURPOSES, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27.11.2015 SD/- SD/- (RANO JAIN) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT DATED 27 TH NOVEMBER, 2015 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR