M/s Bawa Real Estate, Patiala V. ACIT, Patiala

ITA 1051/CHANDI/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 51601 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 01-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K SAINI
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause; Non compliance; Right to appeal

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B, CHANDIGARH BEFORE SHRI H.L.KARWA, HONBLE VICE PRESIDENT AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER ITA NOS.1050 TO 1052CHD/2011 (ASSESSMENT YEARS : 2006-07) & ITA NOS.1053 TO 1055CHD/2011 (ASSESSMENT YEARS : 2007-08) M/S BAWA REAL ESTATE, VS. THE A.C.I.T., SCF 7, TRANSPORT NAGAR, CENTRAL CIRCLE, NEAR SADAR THANA, PATIALA. PATIALA. PAN: AAHFB3543L (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DEEPAK AGGARWAL RESPONDENT BY : SHRI N.K.SAINI, DR DATE OF HEARING : 05.12.2011 DATE OF PRONOUNCEMENT : 05.12.2011 O R D E R PER H.L.KARWA, V.P. : THESE SIX APPEALS FILED BY THE ASSESSEE ARE DIRECTE D AGAINST THE ORDER OF THE CIT (APPEALS)-I, LUDHIANA DATED 29.08. 2011 RELATING TO ASSESSMENT YEARS 2006-07 AND 2007-08. 2. ALL THE SIX APPEALS FILED BY THE ASSESSEE INVOLV ING COMMON ISSUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY T HIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 3. THE COMMON GROUNDS OF APPEALS ARE AS UNDER: 1. THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIR MING THE PENALTY LEVIED BY THE LD. ASSESSING OFFICER U/S 271(1)(B) WITHOUT GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 2. THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRM ING THE PENALTY LEVIED BY THE LD. ASSESSING OFFICER U/S 271(1)(B) ON ACCOUNT OF NON COMPLIANCE ON THE PART OF ASSESSEE, WHEREAS AS PER THE ASSESSEE THERE WAS REASONABLE CAUSE FOR THE SAID NON COMPLIANCE. 2 3. THAT THE ASSESSEE PRAYS FOR ANY CONSEQUENTIAL RE LIEF AND/OR LEGAL CLAIM ARISING OUT OF THIS APPEAL BEFOR E THE DISPOSAL OF THE SAME. 4. THAT THE ASSESSEE PRAYS FOR ANY ADDITION, DELETI ON, AMENDMENT AND MODIFICATION IN THE GROUNDS OF APPEAL BEFORE THE DISPOSAL OF THE SAME IN THE INTEREST OF SUBSTANTIAL JUSTICE TO THE ASSESSEE. 4. AT THE VERY OUTSET, SHRI DEEPAK AGGARWAL, LEARNE D COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LEARNED CIT (APPEALS) H AS DECIDED THE APPEALS OF THE ASSESSEE EX-PARTE WITHOUT AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HE, THEREFORE, SUB MITTED THAT THE IMPUGNED ORDERS MAY BE SET ASIDE AND THE MATTER BE REMANDED TO THE FILE OF THE LEARNED CIT (APPEALS) WITH A DIRECTION TO DE CIDE THE APPEALS OF THE ASSESSEE AFRESH ON MERITS IN ACCORDANCE WITH LA W AFTER AFFORDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE AS SESSEE. 5. SHRI N.K.SAINI, LEARNED D.R. FOR THE REVENUE STR ONGLY OBJECTED TO THE ABOVE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE ALS O PERUSED THE IMPUGNED ORDERS. WE FIND THAT THE LEARNED CIT (APP EALS) HAS DECIDED THE APPEALS OF THE ASSESSEE EX-PARTE. FROM THE IMP UGNED ORDERS IT WOULD BE CLEAR THAT THE LEARNED CIT (APPEALS) HAS NOT PRO VIDED ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE D ECIDING THE APPEALS. IN OUR OPINION, THE LEARNED CIT (APPEALS) SHOULD HA VE AFFORDED ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE D ECIDING THE APPEALS. IN THE CASE OF RADHIKA CHARAN BANERJEE VS. SAMBALPU R MUNICIPALITY, AIR (1979) ORISSA 69, THE HON'BLE ORISSA HIGH 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 OF NATURAL JUSTICE. WHERE AN AUTHORITY IS REQUIRED TO ACT IN A QUASI-JU DICIAL CAPACITY, IT IS 3 IMPERATIVE TO GIVE THE APPELLANT AN ADEQUATE OPPORT UNITY OF BEING HEARD BEFORE DECIDING THE APPEAL. THUS, CONSIDERING THE ENTIRE FACTS OF THE PRESENT CASE, WE THINK IT PROPER TO SET ASIDE THE O RDER OF THE LEARNED CIT (APPEALS) IN TOTO AND RESTORE THE MATTER TO HIS FIL E WITH A DIRECTION TO DECIDE THE APPEALS AFRESH ON MERITS IN ACCORDANCE W ITH LAW AFTER AFFORDING DUE AND REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. WE ALSO DIRECT THE CIT (APPEALS) TO DECIDE THE APPE ALS PREFERABLY WITHIN TWO MONTHS FROM THE DATE OF RECEIPT OF ORDER. AT T HE STAGE, WE ALSO DIRECT THE ASSESSEE TO COOPERATE AND ATTEND THE HEA RINGS TO BE FIXED BY THE CIT (APPEALS). IN VIEW OF THE ABOVE, NO FINDINGS ARE BEING GIVEN ON MERITS. 7. IN THE RESULT, ALL THE SIX APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 5 TH DAY OF DECEMBER, 2011. SD/- SD/- (MEHAR SINGH) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT DATED 5 TH DECEMBER, 2011 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. TRUE COPY BY ORDER ASSISTANT REGISTRAR, ITAT, CHANDIGARH