Shri Minesh Gajiwala, Surat V. The Jt.C.I.T., Range-7, Surat

ITA 1263/AHD/2016

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 1941 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 13-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANIL K SHAH
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

MINESH GAJIWALA V. JCIT-RG-7 SURAT /I.T.A. NO.1263 /AHD/2016/A.Y.11-12 PAGE 1 OF 4 , , INCOM TAX APPELLATE TRIBUNAL-SURAT-BENCH-SURAT . . , . . , BEFORE C .M. GARG, JUDICIAL MEMBER AND O. P. MEENA, ACCOUNTANT MEMBER . . ./ I.T.A NO.1263/AHD/2016 /ASSESSMENT YEAR:2011-12 SHRI MINESH GAJIWALA 100 KAWASJI NAGAR SOCIETY , JUNE ADAJAN NAKA, ADAJAN SURAT 395009 PAN: ABNPG7340P V. JOINT COMMISSIONER OF INCOME TAX, RANGE-7, SURAT APPELLANT /RESPONDENT ASSESSEE BY SHRI ANIL K. SHAH, ADVOCATE REVENUE BY SHRI VINOD KUMAR, SR. D.R. DATE OF HEARING 31.10.2018 DATE OF PRONOUNCEMENT 01.11.2018 /ORDER PER O. P. MEENA, AM 1. THIS APPEAL AT THE INSTANCE OF THE ASSESSEE IS DIRECTED AGAINST AN ORDER DATED 16.03.2016 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-3,SURAT (IN SHORT THE CIT (A)) FOR THE ASSESSMENT YEAR 2011-12. MINESH GAJIWALA V. JCIT-RG-7 SURAT /I.T.A. NO.1263 /AHD/2016/A.Y.11-12 PAGE 2 OF 4 2. GROUND NO. 1 TO 5 STATES THAT THE ASSESSMENT ORDER PASSED BY THE AO IS BAD-IN-LAW ON FACTS , ILLEGAL WITHOUT JURISDICTION AND NEEDS TO BE QUASHED AND LD. CIT (A) ERRED IN SUSTAINING ADDITION OF RS. 62,46,000 UNDER SECTION 69A , INTEREST INCOME OF RS. 15,980 AND INTEREST UNDER SECTION194A OF RS. 19,983. 3. AT THE OUT SET, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE CIT (A) HAS PASSED APPELLATE ORDER WITHOUT CONSIDERING THE DETAILS FILED BY THE ASSESSEE GIVING DETAILS OF JOINT ACCOUNT HOLDER , RELATIONSHIP , DETAILS OF FAMILY MEMBERS, DETAILS OF IMMOVABLE PROPERTY INVESTMENT IN SHARES ETC.. THE LD. CIT (A) HAS FAILED TO GIVE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THEREFORE, IT WAS URGED THAT THE MATTER MAY BE SET-ASIDE TO CIT (A) FOR ALLOWING ONE MORE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. THE LD. SR. DR SUPPORTED THE ORDER OF LOWER AUTHORITIES BUT HAS NO SERIOUS OBJECTION IF ONE MORE OPPORTUNITY OF BEING HEARD IS ALLOWED TO THE ASSESSEE. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND THAT THE LD. CIT (A) HAS ISSUED NOTICE FOR HEARING FOR 15.01.2015, 05.02.2016 AND 18.02.2016, AS MENTIONED IN MINESH GAJIWALA V. JCIT-RG-7 SURAT /I.T.A. NO.1263 /AHD/2016/A.Y.11-12 PAGE 3 OF 4 PARA 5.2 OF APPELLATE ORDER, WHICH WERE NOT COMPLIED WITH BY THE ASSESSEE. THEREFORE, LD. CIT (A) PROCEEDED TO DECIDE APPEAL WITHOUT ALLOWING FURTHER, OPPORTUNITY OF BEING HEARD AND OBSERVED THAT THE DETAILS FILED BY THE ASSESSEE WERE SKETCHY AND SUBMITTED IN PEACE MEAL. THUS, PROPER OPPORTUNITY OF BEING HEARD WAS REMAINED TO BE ALLOWED. WE FIND THAT THE LD. CIT(A) HAS SIMPLY DISMISSED THE APPEAL FOR NON-APPEARANCE BY THE ASSESSEE ON VARIOUS DATES. 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 THE 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 SUPPORT FROM THE DECISION OF THE HON'BLE SUPREME COURT, IN THE CASE OF MANEKA GANDHI VS. 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 MINESH GAJIWALA V. JCIT-RG-7 SURAT /I.T.A. NO.1263 /AHD/2016/A.Y.11-12 PAGE 4 OF 4 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 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 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 01.11.2018. SD/- SD/- ( . . /C.M. GARG) ( . . /O.P.MEENA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER SURAT DATED: 01 NOVEMBER 2018 /OPM / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( - THE CIT(A), 4. PR. CIT 5. , , / DR, ITAT, SURAT; 6. / GUARD FILE. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT