Ispat Sheets Ltd., Guwahati V. Income Tax Officer, Ward-4(2), Guwahati

ITA 132/GTY/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8219 (ITAT-GUWAHATI)
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 01-04-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Set aside
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL GAUHATI ECOURT, AT KOLKATA BEFORE SHRI A. T. VARKEY, JM &DR. A.L.SAINI, AM ./ITA NOS.131 TO 133/GAU/2019 ( / ASSESSMENT YEARS:2009-10, 2010-11 &2015-16) ISPAT SHEETS LTD. C/O SUBASH AGARWAL & ASSOCIATES, ADVOCATES SIDDHA GIBSON, 1, GIBSON LANE, SUITE 213, 2 ND FLOOR, KOLKATA- 700069 VS. ITO, WARD-4(2), GUWAHATI ./ ./PAN/GIR NO.: A AACI 4429 E (APPELLANT) .. (RESPONDENT) APPELLANT BY :WRITTEN SUBMISSION BY ADV. SHRI SUBA SH AGARWAL RESPONDENT BY :SHRI M. C. OMI NINGSHEN, ADDL. CIT S R. DR / DATE OF HEARING : 09/06/2020 /DATE OF PRONOUNCEMENT : 17/07/2020 / O R D E R PER BENCH : THE CAPTIONED THREE APPEALS FILED BY THE ASSESSE E, PERTAINING TO ASSESSMENT YEARS 2009-10, 2010-11 AND 2015-16 RESPE CTIVELY, ARE DIRECTED AGAINST THE SEPARATE ORDERS PASSED BY THE COMMISSIO NER OF INCOME TAX (APPEALS)2,GUWAHATI, IN APPEAL NOS. 58909120111011 7 AND 376981201280118, WHICH IN TURN ARISE OUT OF SEPARA TE ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER U/S 147/143(3)/ 143(3) O F THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. AT THE OUTSET ITSELF, WE NOTE THAT ASSESSEE COMP ANY ASSAILED THE IMPUGNED ORDER ( VIDE GROUNDS OF APPEALS) BY CONTENDING THAT THE A SSESSEE COULD NOT REPRESENT HIS CASE BEFORE LD. CIT(A) AND THE ORDER BEING AN EX-PA RTE ORDER, STOOD VITIATED ON ISPAT SHEETS LTD. ITA NOS.131 TO 133/GAU/2019 ASSESSMENT YEARS:2009-10, 2010-11 & 2015-16 2 ACCOUNT OF VIOLATION OF PRINCIPLE OF NATURAL JUSTIC E. AT THE TIME OF HEARING NONE APPEARED ON BEHALF OF THE ASSESSEE. HOWEVER, ON BEH ALF OF THE ASSESSEE WRITTEN SUBMISSIONS WERE FILED BY SHRI SUBASH AGARWAL, ADVO CATE, WHEREIN IT IS STATED THAT DURING THE COURSE OF APPELLATE PROCEEDINGS, TH E ASSESSEE DID NOT RECEIVE NOTICES OF HEARINGS FROM THE LD. CIT(A) THEREFORE A SSESSEE COULD NOT PLEAD HIS CASE BEFORE THE LD CIT(A). IT IS ALSO MENTIONED IN THE WRITTEN SUBMISSIONS THAT ASSESSEE FILED ADJOURNMENT PETITIONS IN THE E-PROCE EDINGS PORTAL OF THE INCOME TAX DEPARTMENT BUT LD CIT(A) HAS PASSED AN EX PARTE ORDER WITHOUT GIVING ADJOURNMENT TO THE ASSESSEE. IT IS CONTENDED IN THE SAID WRITTEN SUBMISSIONS THAT IN THE INTEREST OF JUSTICE, ANOTHER OPPORTUNITY TO CONTEST THE APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY MAY BE GRANTED TO THE ASS ESSEE. THE SAID WRITTEN SUBMISSIONS ARE REPRODUCED BELOW FOR READY REFERENC E: 1. IN THE INSTANT THREE CASES, LD. CIT(A) HAS PASS ED AN EX PARTE ORDER. ACCORDING TO HIM, DUE AND FAIR OPPORTUNITY WAS GIVE N TO THE APPELLANT BY ISSUING VARIOUS NOTICES FIXING THE DATES OF HEARING OF APPE AL, BUT THERE WAS NO APPEARANCE MADE BY THE APPELLANT. ACCORDING TO HIM, AS MANY AS 4 HEARINGS WHERE FIXED BUT IN NONE OF THE DATES FIXED, THE APP ELLANT MADE APPEARANCE BEFORE HIM. 2. IT IS SUBMITTED THAT OUT OF THE FOUR DAYS MENTIO NED IN THE TABLE DRAWN AT PAGE 1 AND 2 OF LD. CIT(A)S ORDER, ON THE FIRST TWO OCCAS IONS, THAT IS, ON 21.11.2017 AND08.10.2018, NO APPEARANCE COULD BE MADE BECAUSE OF THE FACT THAT THE ASSESSEE NEVER RECEIVED ANY NOTICE OF HEARING. 3. ON THE SUBSEQUENT TWO OCCASIONS, THAT IS, IN RES PECT OF NOTICES DATED 31. 10. 2018 AND 4.12. 2018 FIXING THE DATES OF HEARING ON 13.11.18 AND 12. 12. 2018 RESPECTIVELY, THE APPELLANT HAD DULY FILED THE ADOR NMENT PETITIONS IN THE E- PROCEEDING PORTAL OF THE INCOME TAX DEPARTMENT. ADJOURNMENT PETITIONS FOR A.Y: 2009-10 ARE PLACED I N THE PAPER BOOK AT PAGE NUMBER 5 AND PAGE NUMBER 9. E-ACKNOWLEDGEMENT GENER ATED FROM THE PORTAL IN RELATION TO THE TWO ADJOURNMENT PETITIONS ARE PLACE D AT PAGE NUMBER 4 AND 8 OF THE PAPER BOOK RESPECTIVELY. 4. SIMILARLY FOR THE ASSESSMENT YEAR 2010-11, ACKNO WLEDGEMENTS AND THE ADJOURNMENT PETITIONS ARE PLACED AT PAGE NUMBER 13- 14 AND PAGE NUMBER 17-18 RESPECTIVELY. ISPAT SHEETS LTD. ITA NOS.131 TO 133/GAU/2019 ASSESSMENT YEARS:2009-10, 2010-11 & 2015-16 3 5. SIMILARLY FOR THE ASSESSMENT YEAR 2015-16, ACKNO WLEDGEMENTS AND THE ADJOURNMENT PETITIONS ARE PLACED AT PAGE NUMBER 22- 23 AND PAGE NUMBER 26-27 RESPECTIVELY. 6. IT IS HUMBLY SUBMITTED THAT IN SPITE OF SUBMISSI ON OF THE ADJOURNMENT PETITIONS IN THE E-PROCEEDINGS PORTAL OF THE INCOME TAX DEPAR TMENT, THE LD CIT(A) HAS PASSED AN EX PARTE ORDER IN GROSS DENIAL OF PRINCIP LES OF NATURAL JUSTICE. 7. IN VIEW OF THE ABOVE, IT IS PRAYED THAT IN THE I NTEREST OF JUSTICE, ALL THE THREE CASES MAY PLEASE BE SENT BACK TO THE FILE OF THE LD . CIT(A). OTHERWISE YOUR APPELLANT WOULD SUFFER IRREPARABLE LOSS AND INJURY. 3. WE HAVE HEARD THE LD. D.R. FOR THE REVENUE AND P ERUSED THE MATERIAL AVAILABLE ON RECORD. WE NOTE THAT DURING THE APPELLATE PROCEE DINGS THEASSESSEE HAS PARTICIPATED IN THE APPELLATE PROCEEDINGS AND SOUGH T ADJOURNMENT THROUGH E- PROCEEDINGS PORTAL, HOWEVER THE LD CIT(A) DID NOT G RANT ADJOURNMENT WHICH IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. WE NOTE T HAT ON TWO OCCASIONS, THAT IS, ON 21.11.2017 AND 08.10.2018, THE ASSESSEE NEVER RECEI VED ANY NOTICE OF HEARING FROM LD CIT(A) THEREFORE ASSESSEE COULD NOT PLEAD H IS CASE BEFORE THE LD CIT(A), HENCE IT IS A VIOLATION OF PRINCIPLE OF NATURAL JUS TICE. WE NOTE THAT THE HONBLE SUPREME COURT IN M.S. GILL VS THE CHIEF ELECTION COMMISSION 1978 AIR SC 851 HELD THE DICHOTOMY BETW EEN ADMINISTRATIVE AND QUASI-JUDICIAL FUNCTION VIS--VIS THE DOCTRINE OF N ATURAL JUSTICE IS PRESUMABLY OBSOLESCENT AFTER KRAIPAK (A.K. KRAIPAK VS UOI AIR 1970 SC 150) WHICH MAKES THE WATER-SHED IN THE APPLICATION OF NATURAL JUSTICE TO ADMINISTRATIVE PROCEEDINGS. THE RULES OF NATURAL JUSTICE ARE ROOT ED IN ALL LEGAL SYSTEMS AND ARE NOT ANY NEW THEOLOGY. THEY ARE MANIFESTED IN THE T WIN PRINCIPLES OF NEMO JUDEX IN PARTESUA ( NO PERSON SHALL BE A JUDGE IN HIS OWN CASE) AND AUDI ALTEREM PARTEM (THE RIGHT TO BE HEARD). IT HAS BEEN POINTED OUT T HAT THE AIM OF NATURAL JUSTICE IS TO SECURE JUSTICE. ISPAT SHEETS LTD. ITA NOS.131 TO 133/GAU/2019 ASSESSMENT YEARS:2009-10, 2010-11 & 2015-16 4 4. THEREFORE, CONSIDERING THE FACTUAL POSITION NARR ATED ABOVE, WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE AS SESSEE TO PLEAD HIS CASE BEFORE LD CIT(A). LEARNED DR DID NOT HAVE ANY OBJECTION IF THE MATTER IS REMITTED BACK TO THE FILE OF THE LD CIT(A).THEREFORE, IN THE INTE REST OF JUSTICE, WE DEEM IT FIT AND PROPER TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OFLD.CIT(A) FOR DE NOVO ADJUDICATION AND PASS A SPEAKING ORDER, ON MERITS, AFTER AFFORDING SUFFICIENT OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE.FOR STATISTICAL PURPOSES, THESE THREE APPEALS OF THE ASSESSEES ARE ALLOWED. 5. IN THE RESULT, THE APPEALS OF THE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 17 .07.2020 SD/- ( A. T.VARKEY ) SD/- (A. L. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATE: 17/07/2020 ( SB, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. ISPAT SHEETS LTD. 2. ITO, WARD-4(2), GUWAHATI 3. C.I.T(A)- 4. C.I.T.- GUWAHATI. 5. CIT(DR), GAUHATIBENCH, GUWAHATI. 6. GUARD FILE. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY / DDO / H.O.O ITAT, GAUHA TI BENCH