Shri Amal Saha, North 24 Parganas V. ITO, Ward-50(2), Kolkata, Kolkata

ITA 1372/KOL/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70481 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2013
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 26-09-2012
• Court: TRIBUNAL
• Department Lawyers: R PRASAD SRDR
• Assessee Lawyers: V N PURAHIT
• Keywords: Opportunity of being heard; Principle of natural justice; Right to appeal
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI ABRAHAM P GEORGE, ACCOUNTANT MEMBER ITA NO. 1372 / KOL / 2012 ASSESSMENT YEAR :2008-09 SHRI AMAL SHAH NR. KARBALA BRIDGE, WEST CHANDIGARH, KORA CHANDIGARH, MADHYAMGRAM, DIST. 24-PARGANAS (N), PIN 700 130 [ PAN NO.AWHPS 4079E ] V/S . INCOME TAX OFFICER WARD-50(2),KOLKATA UTTRAPAN CHMPLEX, ULTADANGA, KOLKATA 700 054 / APPELLANT .. / RESPONDENT) /BY APPELLANT SHRI V.N.PURAHIT, AR /BY RESPONDENT SHRI R.PRASAD, SR-DR /DATE OF HEARING 29-11-2013 /DATE OF PRONOUNCEMENT 19-12-2013 / // / O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER:- THIS APPEAL BY ASSESSEE IS ARISING OUT COMMISSIONE R OF INCOME-TAX (APPEALS)-XXXII, KOLKATA IN APPEAL NO. 113/CIT(A)-X XXII10-11/50(2)KOL DATED 25-07-2012. ASSESSMENT WAS FRAMED BY ITO, WARD 50(2 ), KOLKATA U/S.144 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO A S THE ACT) VIDE HIS ORDER DATED 28-12-2010 FOR ASSESSMENT YEAR 2008-09. 2. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE RAIS ED ISSUE THAT THE ORDER OF CIT(A) IS EX PARTE AND NON-SPEAKING ORDER WITHOUT CONSIDERING ANYTHIN G ITA NO.1372/KOL/2012 A.Y. 2008-09 SH AMAL SAHA V. ITO WD-50(2) KOL PAGE 2 FROM THE ASSESSMENT ORDER. HE DREW OUR ATTENTION TO THE ORDER OF CIT(A) WHICH BEFORE WHOM NON REPRESENTED ON BEHALF OF ASSESSEE O R DEPARTMENT. FURTHER HE DREW OUR ATTENTION TO THE ASSESSMENT ORDER WHICH IS PASSED U/S. 144 OF THE ACT WITHOUT PROVIDING ANY OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE. IN SUCH CIRCUMSTANCES, LD. COUNSEL FOR THE ASSESSEE STATED THAT THE ISSUE BE REMITTED BACK TO THE FILE OF CIT(A) FOR ALLOWING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND ALSO PLACING RELEVANT MATERIAL BEF ORE HIM, SO THAT HE CAN DECIDE THE ISSUE EITHER ON HIS OWN OR BY TAKING REM AND REPORT FROM THE ASSESSING OFFICER. ON THE OTHER HAND, LD. SR-DR HAS NOT OBJECTED TO REMITTING THE ISSUE BACK TO THE FILE OF CIT(A). 3. AFTER HEARING RIVAL CONTENTIONS AND PERUSING THE ORDERS OF LOWER AUTHORITIES, IT IS NOTICED THAT ASSESSEE WAS NOT PR OVIDED WITH REASONABLE OPPORTUNITY OF BEING HEARD AND APPELLATE ORDER IS P ASSED EX PARTE. A RIGHT OF APPEAL WHERE EVER CONFERRED INCLUDES A RIGHT OF BEI NG AFFORDED AN OPPORTUNITY OF BEING HEARD, IRRESPECTIVE OF THE LANGUAGE CONFER RING 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 AP PELLANT AN ADEQUATE OPPORTUNITY OF BEING HEARD BEFORE DECID ING THE APPEAL. OPPORTUNITY OF HEARING DOES NOT ALWAYS NECESSARILY MEAN GIVING A PERSONAL HEARING. A WRITTEN REPRESENTATION, IF COMPLETE AND ELABORATE IN ALL RESPECTS FULLY EXPLAINING THE POINTS OF VIEW OF THE APPELLANT, WHE N ACCEPTED MAY, IN SOME CASES, AMOUNT TO AFFORDING OPPORTUNITY OF HEARING. WHAT PARTICULAR RULE OF NATURAL JUSTICE SHOULD APPLY TO A GIVEN CASE MUST A LSO DEPEND TO A GREAT EXTENT ON THE FACTS AND CIRCUMSTANCES OF THAT CASE. FURTHER, THE PROVISIONS OF THE SAID SECTION 250(6) OF THE ACT ARE IN THE NATUR E OF INSTRUCTIONS TO THE APPELLATE AUTHORITY AND EMPHASIZING THAT THE ORDER DISPOSING OF THE APPEAL SHALL BE A SPEAKING ORDER. THE ORDER SHALL NOT BE C RYPTIC. THE ORDER SHALL BE SELF-EXPLANATORY. THAT SUB-SECTION CANNOT SUPPORT T HE ARGUMENT THAT THE APPELLATE AUTHORITY SHALL NOT TRAVEL BEYOND THE POI NTS RAISED. THUS, SECTION 250(6) PROVIDES THAT THE ORDERS OF THE FIRST APPELL ATE AUTHORITY DISPOSING OF THE ITA NO.1372/KOL/2012 A.Y. 2008-09 SH AMAL SAHA V. ITO WD-50(2) KOL PAGE 3 APPEAL SHALL BE IN WRITING. SUCH ORDERS ARE TO STAT E THE POINTS ARISING IN THE APPEAL, THE DECISION OF THE AUTHORITY THEREON AND T HE REASONS FOR SUCH DECISION. THIS IS MORE SO BECAUSE SUCH ORDERS ARE S UBJECT TO FURTHER APPEAL TO THE APPELLATE TRIBUNAL. THE OBJECT IS TOO OBVIOUS. IT ENABLES A PARTY TO KNOW PRECISE POINTS DECIDED IN HIS FAVOUR OR AGAINST HIM . ABSENCE OF THE FORMULATION OF THE POINTS FOR DECISION OR WANT OF CLARITY IN A DECISION UNDOUBTEDLY PUTS A PARTY IN QUANDARY. A DECISION AGAINST A PARTY ENABL ES HIM TO GO IN APPEAL. A DECISION BY ITS VERY NATURE MUST BE FIRM AND SHOULD NOT BE VAGUE AND UNCLEAR. IN SUCH SITUATION, WE SET ASIDE THE ORDER OF CIT(A) AND DIRECT HIM TO RE-DECIDE THE APPEAL AS DISCUSSED ABOVE. 4. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR ST ATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT 19 /1 2/2013 SD/- SD/- (ABRAHAM P GORGE) ( MAHAVIR SINGH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP !' #- 19 /12/2013 ) **+ **+ **+ **+ ,+ ,+ ,+ ,+ / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. '.'*/ 0 / CONCERNED CIT 4. 0- / CIT (A) 5. +34 ***/, */ , / DR, ITAT, KOLKATA 6. 478 9: / GUARD FILE. BY ORDER/ , ;/< '= */ ,