Shri Chandubhai Haribhai Vaghasia, Surat V. The Dy.CIT.,Circle-9, Surat

ITA 1154/AHD/2013

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 2219 (ITAT-SURAT)
• Duration Of Justice: 5 year(s) 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 17-07-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 25-04-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SMITHA V NAIR
• Assessee Lawyers: P M JAGASHETH
• Keywords: Reopening of assessment; Opportunity of being heard; Principle of natural justice
• Section: 147; 144; 2

Judgement Text

SHRI CHANDUBHAI H.VAGHASIA V. DCIT-9 SURAT /I.T.A. NO. 1154/AHD/2013/SRT/A.Y.:08-09 PAGE 1 OF 5 , , 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.1154 /AHD/2013/ / ASSESSMENT YEAR : 2008-09 SHRI CHANDUBHAI H. VAGHASIA, G-15,SHREEJI APARTMENT, HIRA BAUG VARACHHA ROAD SURAT PAN: ABCPV 0925E VS. DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-9 SURAT APPELLANT /RESPONDENT /ASSESSEE BY SHRI P. M. JAGASHETH, CA /REVENUE BY SMT. SMITHA V. NAIR, SR. D.R. / DATE OF HEARING: 21.08.2018 /PRONOUNCEMENT ON 07.09.2018 /O R D E R PER O. P. MEENA, ACCOUTANT MEMBER: 1 THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER DATED 01.02.2013 OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-V, SURAT [HEREINAFTER REFERRED TO AS THE CIT (A)]. THIS APPEAL PERTAINS TO ASSESSMENT YEAR 2008-09. WHICH IN TURN AROSE FROM THE ASSESSMENT ORDER DATED 30.08.2011, PASSED SHRI CHANDUBHAI H.VAGHASIA V. DCIT-9 SURAT /I.T.A. NO. 1154/AHD/2013/SRT/A.Y.:08-09 PAGE 2 OF 5 U/S. 144 READ WITH SECTION 147 OF INCOME TAX ACT,1961 (HEREIN AFTER REFERRED TO AS 'THE ACT) BY THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-9, SURAT [HEREINAFTER REFERRED TO AS THE AO]. 2 THE GROUND NO. 1 & 2 IS AGAINST THE CONFIRMING THE ACTION OF REOPENING OF ASSESSMENT OF THE AO AND THEREBY CONFIRMING ADDITION OF RS. 14,23,918 BEING SHORT-TERM CAPITAL GAINS. BESIDE THIS, THE ASSESSEE HAS ALSO FILED AN ADDITIONAL GROUND STATING THAT THE LD. CIT (A) HAS NOT OFFERED ADEQUATE OPPORTUNITY OF HEARING AND THE ASSESSMENT ORDER WAS PASSED EX-PARTE. HENCE, THE CASE MAY PLEASE BE SET-ASIDE AND RESTORED BACK TO THE FILE OF THE AO OR CIT (A). 3 WE HAVE HEARD THE REVEAL SUBMISSIONS AND FIND THE ADDITIONAL GROUND RAISED IS PURELY A LEGAL ISSUE, GOES TO THE ROOT OF THE MATTER AND NO FURTHER INQUIRY IS REQUIRED FOR DECIDING THE SAME AS ALL FACTS ARE ALREADY ON RECORD AND ISSUE ARISE OUT OF IMPUGNED ORDER. HENCE, RELYING IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. V. CIT [1998] 229 ITR 383(SC) OF HON`BLE SUPREME COURT THE APPEAL IS ALLOWED TO BE ADMITTED AND BEING PROCEEDED TO DECIDE THE GROUND. SHRI CHANDUBHAI H.VAGHASIA V. DCIT-9 SURAT /I.T.A. NO. 1154/AHD/2013/SRT/A.Y.:08-09 PAGE 3 OF 5 4 AT THE OUTSET, THE LEARNED COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT ASSESSMENT ORDER FOR THE ASSESSMENT YEAR UNDER CONSIDERATION HAS BEEN FRAMED U/S. 144 OF THE ACT EX-PARTE WITHOUT AFFORDING SUFFICIENT TIME AND OPPORTUNITIES BY THE AO AND LD. CIT (A) HAS ADJUDICATED COMPLICATED ISSUES ON THE BASIS OF STATEMENT OF FACTS WITHOUT ALLOWING REBUTTAL OF THE FINDINGS OF THE AO AND PASSED EX- PARTE APPEAL ORDER. THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE HENCE, THE ASSESSEE COULD NOT ATTAINED AND COMPLIED WITH NOTICES AND RESULTANT ATTENDANCE OF HEARING. THEREFORE, THE LEARNED COUNSEL FOR THE ASSESSEE URGED BEFORE US THAT ONE MORE OPPORTUNITY OF BEING HEARD MIGHT BE GRANTED TO THE ASSESSEE TO MAKE GOOD HIS SUBMISSIONS WITH RELEVANT EVIDENCE TO THE SATISFACTION OF REVENUE AUTHORITIES BY SETTING ASIDE THE APPEAL TO THE FILE OF THE AO. HENCE, IN ALL FAIRNESS, THE LEARNED COUNSEL FOR THE ASSESSEE DOES NOT HAVE ANY OBJECTION TO THE ISSUE IF IT IS RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR A DE-NOVO CONSIDERATION. 5 WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. WE FIND THAT THE ASSESSMENT IN ALL THE THREE YEARS HAVE BEEN PASSED EX-PARTE UNDER SECTION 144 READ WITH SECTION 147 OF SHRI CHANDUBHAI H.VAGHASIA V. DCIT-9 SURAT /I.T.A. NO. 1154/AHD/2013/SRT/A.Y.:08-09 PAGE 4 OF 5 THE ACT BY THE AO. THE AO THOUGH AFFORDED NUMBER OF OPPORTUNITIES BUT THE ASSESSEE HAS FAILED TO RESPOND THE SAME. THE LD. CIT (A) HAS ALSO DECIDED ANCESTRAL AGRICULTURAL LAND THESE APPEALS WITHOUT 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 ARE MUST. WE FIND THE GUIDANCE FOR RIGHT OF HEARING, 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 HELD 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 GIVEN ONE MORE SHRI CHANDUBHAI H.VAGHASIA V. DCIT-9 SURAT /I.T.A. NO. 1154/AHD/2013/SRT/A.Y.:08-09 PAGE 5 OF 5 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 THE LD. ASSESSING OFFICER FOR MAKING DENOVA ASSESSMENT AFRESH AFTER ALLOWING PROPER OPPORTUNITY OF BEING HEARD IN ACCORDANCE WITH LAW. NEVERTHELESS, TO MENTION THAT THE ASSESSEE WILL COOPERATE IN THE APPEAL PROCEEDINGS AND 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 THE ORDER PRONOUNCE IN THE OPEN COURT ON 07.09.2018. SD/- SD/- ( . . /C.M. GARG) ( . . /O.P.MEENA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER DATED: 07.09.2018./OPM / 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