Smt. Dahiben Vasantbhai Makwana, Ahmedabad V. The Income Tax Officer, Ward-4, Bharuch

ITA 1096/AHD/2014

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 2195 (ITAT-SURAT)
• Duration Of Justice: 4 year(s) 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 24-07-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 15-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIL DHAKA
• Assessee Lawyers: MRS KINJAL SHAH
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 144; 143(3)

Judgement Text

DAHIBEN VASANTBHAI MAKWANA V. ITO W-4 BHARUCH/I.T.A. NO.1096/AHD/2014/SRT/A.Y.:09-10 PAGE 1 OF 3 , , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT . . , . . , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . . ./ I.T.A NO.1096/AHD/2014 / ASSESSMENT YEAR : 2009-10 SMT. DAHIBEN VASANTBHAI MAKWANA B-145, KUM- KUM BUNGALOWS, KOSAMADI8, VALIA ROAD GIDC , ANKLESHWAR PAN: ASWPM 5796 M V S . INCOME TAX OFFICER, WARD-4, BHARUCH APPELLANT /RESPONDENT /ASSESSEE BY MRS. KINJAL SHAH, CA /REVENUE BY SHRI ANIL DHAKA, SR. D. R / DATE OF HEARING: 19.09.2018 /PRONOUNCEMENT ON 19.09.201 8 /O R D E R PER O. P. MEENA, ACCOUTANT MEMBER: 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-VI, BARODA[IN SHORT CIT (A)] DATED 11.09.2013 PERTAINING TO ASSESSMENT YEAR 2009-10, WHICH IN TURN HAS ARISEN FROM THE ORDER DATED 20.12.2011 PASSED BY THE ITO WARD-4 BHARUCH (IN SHORT THE AO) UNDER SECTION 143(3) READ WITH SECTION 144 OF INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. THE ASSESSEE HAS TAKEN THE GROUNDS OF APPEAL AGAINST THE CONFIRMATION OF RS. 30,92,135 ADDITION BEING CASH CREDIT IN THE BANK ACCOUNT OF HUSBAND SHRI VASANTBHAI M. MAKWANA MADE IN THE HANDS OF THE ASSESSEE ON PROTECTIVE BASIS AND SUBSTANTIVE ADDITION MADE IN THE CASE OF HUSBAND OF THE ASSESSEE. DAHIBEN VASANTBHAI MAKWANA V. ITO W-4 BHARUCH/I.T.A. NO.1096/AHD/2014/SRT/A.Y.:09-10 PAGE 2 OF 3 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT NO PROPER OPPORTUNITY OF HEARING AFFORDED TO THE ASSESSEE. THE LD. CIT (A) WAS NOT JUSTIFIED IN REJECTING THE APPEAL OF THE ASSESSEE EX-PARTE. IT WAS SUBMITTED THAT THE SUBSTANTIVE ADDITION MADE IN THE HANDS OF HER HUSBAND HAS BEEN ALREADY SET-ASIDE TO CIT (A) VIDE ORDER DATED 05.10.2017 BY THE TRIBUNAL IN I.T.A.NO. 1095/AHD/2014/A.Y. 2009-10. THEREFORE, THE APPEAL IN WHICH PROTECTIVE ADDITION IS MADE SHOULD ALSO BE SET-ASIDE TO CIT (A) FOR TAKING APPROPRIATE DECISION. THE LD. COUNSEL PRAYED THAT THE APPEAL BE RESTORED TO THE FILE OF LD. CIT (A) WITH A DIRECTION THAT PROPER OPPORTUNITY OF BEING HEARD MAY BE ALLOWED TO THE ASSESSEE. 4. THE LD. SENIOR D.R. RELIED ON THE ORDERS OF THE AUTHORITIES BELOW, HOWEVER, HAS NO OBJECTION IF THE ENTIRE ISSUE IS SET-ASIDE TO CIT (A). 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. WE FIND THAT THE SUBSTANTIVE ADDITION MADE IN THE CASE OF HER HUSBAND ON SAME ISSUE HAS BEEN SET-ASIDE TO CIT (A) FOR RE CONSIDERATION AND RE- EXAMINATION. WE FIND THAT THE LD. CIT (A) HAS NOT ALLOWED PROPER OPPORTUNITY OF BEING HEARD. 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 AN OPPORTUNITY TO DEFEND HIMSELF. THIS PRINCIPLE IS SINE QUA NON OF EVERY CIVILIZED SOCIETY. THE 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 PARTY, REPORT OF ENQUIRY TO BE SHOWN TO THE OTHER PARTY AND REASONED DECISIONS OR SPEAKING ORDERS. WE TOOK THIS GUIDANCE FOR RIGHT OF HEARING, FROM THE RATIO AS IS LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF MANEKA GANDHI V. UNION OF INDIA, WHEREIN HON'BLE SUPREME COURT HAS LAID DOWN THAT RULE OF FAIR HEARING IS NECESSARY BEFORE PASSING ANY ORDER. WE FIND THAT IT IS PRE-DECISION HEARING STANDARD OF NORM OF RULE OF AUDI ALTERAM PARTEM. WE FIND THAT IN THIS INSTANT CASE, THE ASSESSEE WAS NOT GIVEN PROPER HEARING. THEREFORE, WE ARE OF THE VIEW THAT THE ASSESSEE MUST BE DAHIBEN VASANTBHAI MAKWANA V. ITO W-4 BHARUCH/I.T.A. NO.1096/AHD/2014/SRT/A.Y.:09-10 PAGE 3 OF 3 GIVEN ONE MORE OPPORTUNITY OF HEARING AND TO REPRESENT HIS CASE. THEREFORE, IN EXERCISE OF POWER CONFERRED UNDER RULE 28 OF TRIBUNAL RULES, WE RESTORE THIS APPEAL TO THE FILE OF LD. CIT (A) FOR RECONSIDERATION ALL GROUNDS OF APPEAL AFTER ALLOWING PROPER OPPORTUNITY OF BEING HEARD IN ACCORDANCE WITH LAW. NEVERTHELESS, TO MENTION THAT THE ASSESSEE WILL COOPERATE IN THE APPEAL PROCEEDINGS AND HIS FAILURE WILL ENTAIL CONFIRMATION OF THE IMPUGNED ADDITION MADE BY THE AO. THE ASSESSEE WILL FILE NECESSARY EVIDENCES ON WHICH HE WANTS TO RELY UPON. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. ORDER PRONOUNCED IN THE OPEN COURT ON 19.09.2018. SD/- SD/- ( . . /C.M. GARG) ( . . /O.P.MEENA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER DATED: 19 TH SEPTEMBER, 2018. / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( ) THE CIT(A)4. / PR. CIT 5. , / D.R. (ITAT) 6. / GUARD FILE ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT