Dr. H.B. Singh, Faizabad V. ITO, Faizabad

ITA 132/LKW/2011

• Counselvise Citation: 13223714 RSA 2011
• Duration Of Justice: 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 02-08-2011
• Assessment Year: 1999-2000
• Appeal Filed On: 21-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K B AJAJ
• Keywords: Opportunity of being heard; Principle of natural justice; Right to appeal

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B - BENCH, LUCKNOW. BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT AND SHRI N.K.SAINI, ACCOUNTANT MEMBER I.T.A.NO.132(LKW.)/2011 A.Y.: 2002-03 DR. H.B.SINGH, VS. THE ITO- II, 744, HAMDANI KOTHI, FAIZABAD. REIDGANJ, FAIZABAD. PAN AGFDS6124G (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAKESH GARG, ADVOCATE RESPONDENT BY : SHRI P.K.BAJAJ, SR.D.R. O R D E R PER H.L.KARWA, VICE PRESIDENT THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD.CIT(A)-I, LUCKNOW DATED 11.1.2011 IN CONFIRMING THE PENALTY OF RS.90,000 UNDER SECTION 271(1)(C) OF THE INCOME-TAX ACT,1961 (IN SHORT THE ACT) FOR THE ASSESSMENT YEAR 2002-03. 2. AT THE VERY OUTSET, SHRI RAKESH GARG, ADVOCATE, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A)-I, LUCKNOW HAS PASSED THE IMPUGNED ORDER EX PARTE QUA THE ASSESSEE. THE LD.CIT(A) HAS NOT AFFORDED ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THEREFORE, THE MATTER MAY BE REMANDED TO THE FILE OF THE LD.CIT(A) WITH A DIRECTION TO DECIDE THE APPEAL AFRESH IN ACCORDANCE WITH LAW AFTER AFFORDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ON THE OTHER HAND, SHRI 2 P.K.BAJAJ, LD.D.R. STRONGLY OPPOSED THE ABOVE CONTENTION OF SHRI RAKESH GARG, ADVOCATE, LEARNED COUNSEL FOR THE ASSESSEE. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE ALSO PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS OBSERVED THAT THE LD.CIT(A) HAS PASSED THE IMPUGNED ORDER EX PARTE WITHOUT AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN OUR VIEW THE LD. CIT(A) SHOULD HAVE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IN THE CASE OF RADHIKA CHARAN BANERJEE VS. SAMBALPUR 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 LANGUAGE 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-JUDICIAL CAPACITY, IT IS IMPERATIVE TO GIVE THE APPELLANT AN ADEQUATE OPPORTUNITY OF BEING HEARD BEFORE DECIDING THE APPEAL. THUS, CONSIDERING THE ENTIRE FACTS OF THE PRESENT CASE, WE THINK IT PROPER TO SET ASIDE THE ORDER OF THE LD.CIT(A) IN TOTO AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO DECIDE THE APPEAL AFRESH ON MERITS IN ACCORDANCE WITH LAW AFTER AFFORDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD.CIT(A) IS ALSO DIRECTED TO DECIDE THE APPEAL PREFERABLY WITHIN THREE MONTHS FROM THE DATE OF RECEIPT OF THE ORDER. AT THE SAME TIME, WE ALSO DIRECT 3 THE ASSESSEE TO CO-OPERATE AND ATTEND THE HEARING BEFORE THE LD.CIT(A). IN VIEW OF THE ABOVE, NO FINDINGS ARE BEING GIVEN ON MERITS. 4. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 10.8.2011. SD. SD. (N.K.SAINI) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT AUGUST 10TH , 2011. COPY TO THE : 1. APPELLANT 2. RESPONDENT 3. CIT(A) (4) CIT 5.DR. A.R.,ITAT, LUCKNOW. SRIVASTAVA.