ADIT, New Delhi V. M/s Cobra Instalationes-Y-Servicios India Pvt. Lt.d., New Delhi

ITA 1397/DEL/2011

• Counselvise Citation: 139720114 RSA 2011
• Duration Of Justice: 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 01-12-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 18-03-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: HIREN MEHTA SH SANJEEV KWATRA
• Assessee Lawyers: N K CHAND
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: B NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI K.G.BANSAL, ACCOUNTANT MEMBER ITA NO: 575/DEL/2011 A.Y. : 2004-2005 COBRA INSTALATIONES Y SERVICES, S.A. VS. DDIT, CIRC LE I(1) B 324, NEW FRIENDS COLONY INT.TAX, NEW DELHI NEW DELHI 65 PAN: AAACC3459Q A N D ITA 1397/DEL/11 A.Y. 2004-05 ADIT, CIRCLE I (1) VS. COBRA INSTALATIONES- Y- SER VICES INDIA NEW DELHI P.LTD., NEW DELHI (APPELLANT) (RE SPONDENT) APPELLANT BY : SH.HIREN MEHTA/SH. SANJEEV KWATRA, C.A. RESPONDENT BY : SH.N.K.CHAND, SR.D.R. O R D E R PER BENCH BOTH THE ASSESSEE AND THE REVENUE HAVE FILED APPEA LS AGAINST THE ORDER DT. 13.12.2010 OF CIT(A)-XI, NEW DELHI PE RTAINING TO 2004-05 A.YS. 2. THE ASSESSEE IN ITS APPEAL HAS RAISED VARIOUS G ROUNDS CHALLENGING THE IMPUGNED ORDER, CHALLENGE HAS BEEN POSED ON TH E GROUND THAT OPPORTUNITY OF BEING HEARD HAS NOT BEEN GRANTED AND ALSO ON MERITS OF ITA 575/DEL/2011 & PAGE 2 OF 4 ITA 1397/DEL/11 M/S COBRA INSTALATIONS Y SERVICES INDIA P.LTD. A.Y. 2004-05 THE ADDITIONS SUSTAINED BY THE CIT(A). HOWEVER AT THE TIME OF HEARING LD.A.R. ADDRESSING GROUND NO.2 REQUESTED THAT THE I MPUGNED ORDER BE SET ASIDE AS THE ASSESSEE HAS NOT BEEN GRANTED AN OPPOR TUNITY OF BEING HEARD. IT WAS STATED THAT THE IMPUGNED ORDER WAS P ASSED EX PARTE ON ACCOUNT OF THE FACT THAT JURISDICTION OF THE CIT(A) CHANGED. A STATEMENT AT BAR WAS MADE STATING THAT THE APPEAL WAS FILED O N 22.1.2007 WITH THE OFFICE OF CIT(A)-XXIX, NEW DELHI WHEREIN HEARINGS T OOK PLACE FROM TIME TO TIME AND A PAPER BOOK WAS ALSO FILED. HOWEVER F INALLY THE APPEAL WAS ADJUDICATED UPON BY CIT(A)-XI, DELHI WHICH FACT IS BORNE OUT FROM PARA 2.1 OF THE IMPUGNED ORDER. IN THE CONTEXT OF THE A BOVE BACKGROUND IT WAS SUBMITTED THAT THE ASSESSEE HAS BEEN DENIED AN OPPORTUNITY OF BEING HEARD AND AS SUCH HAS BEEN PREJUDICED. IN THE LIGH T OF THESE FACTS A PRAYER WAS MADE THAT THE ISSUE MAY BE RESTORED TO T HE CIT(A) IN ORDER TO AFFORD THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. 3. LD.D.R. WAS REQUIRED TO ADDRESS THE DEPARTMENTAL STAND IN REGARD TO THE ARGUMENTS ON BEHALF OF THE ASSESSEE. CONSID ERING PARA 2.1 OF THE IMPUGNED ORDER THE LD.D.R. FAIRLY CONCEDED THAT HE WOULD HAVE NO OBJECTION IF AN OPPORTUNITY OF BEING HEARD IS GRAN TED TO THE ASSESSEE BY THE CIT(A). HOWEVER IT WAS HIS STAND THAT SINCE TH E DEPARTMENT IS ALSO AGGRIEVED BY THE IMPUGNED ORDER AS SUCH IN THE EVEN TUALITY THE APPEAL OF THE ASSESSEE IS RESTORED BACK THEN THE RELIEF GRANT ED BY THE CIT(A) SHOULD ALSO BE SET ASIDE AND THE DEPARTMENTAL APPEAL ALSO SHOULD BE RESTORED ITA 575/DEL/2011 & PAGE 3 OF 4 ITA 1397/DEL/11 M/S COBRA INSTALATIONS Y SERVICES INDIA P.LTD. A.Y. 2004-05 BACK TO CIT(A). LD.A.R. HAD NO OBJECTION TO THE S AID SUBMISSION OF THE LD.SR.D.R. 4. IN THE LIGHT OF THE ARGUMENTS ADVANCED BY THE PA RTIES BEFORE THE BENCH AND CONSIDERING THE MATERIAL AVAILABLE ON REC ORD, WE ARE OF THE VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES O F THE CASE IT WOULD BE APPROPRIATE TO RESTORE THE ISSUE BACK TO THE FILE O F THE CIT(A) IN ORDER TO AFFORD THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. THE RIGHT TO BE HEARD AUDI ALTERAM PARTEM IS ONE OF THE MOST FUNDAMENTA L PRINCIPLES OF NATURAL JUSTICE. THE AIM OF NATURAL JUSTICE IS TO SECURE JUSTICE OR TO PUT IT NEGATIVELY TO PREVENT THE MISUSE OF JUSTICE. THE RU LE OF FAIR PLAY AS CONSIDERED AND CONTEMPLATED IN ADMINISTRATIVE LAW V ESTS THE RIGHT TO BE HEARD IN A PERSON WHO APPROACHES ANY JUDICIAL/QUAS I JUDICIAL OR ADMINISTRATIVE BRANCH FOR RELIEF UNDER LAW. THE PR INCIPLES OF NATURAL JUSTICE ENSURE THE MINIMUM PROTECTION OF THE RIGHTS OF THE PARTY AGAINST WHEN THE ARBITRARY PROCEDURES WHICH MAY BE ADOPTED BY A JUDICIAL/QUASI JUDICIAL AUTHORITY WHILE MAKING AN ORDER AFFECTING THOSE RIGHTS. SEC. 250(2) OF THE INDIAN INCOME TAX ACT, 1961 ENSHRINES THIS PRINCIPLE. THE RIGHT TO BE HEARD IS BASED ON THE COMMON LAW PRINCI PLE THAT NO ONE IS TO BE CONDEMNED UNHEARD. ACCORDINGLY FOR THE REASONS G IVEN HEREINABOVE THE IMPUGNED ORDER IS SET ASIDE WITH THE DIRECTION THAT THE CIT(A) SHALL PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. ITA 575/DEL/2011 & PAGE 4 OF 4 ITA 1397/DEL/11 M/S COBRA INSTALATIONS Y SERVICES INDIA P.LTD. A.Y. 2004-05 5. IN THE RESULT GROUND NO.2 OF THE ASSESSEE IS AL LOWED. THE REMAINING GROUNDS ARE RESTORED FOR FRESH ADJUDICATI ON. SINCE THE IMPUGNED ORDER IS SET ASIDE THE ISSUE AGITATED BY T HE DEPARTMENT AGAINST THE RELIEF ALLOWED BY THE CIT(A) DOES NOT SURVIVE. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PART LY ALLOWED FOR STATISTICAL PURPOSES AND THE DEPARTMENTAL APPEAL ST ANDS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 13 TH JANUARY, 2012. SD/- SD/- (K.G.BANSAL ) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 13 TH JANUARY, 2012 *MANGA COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CI T(A); 5.DR; 6.GUARD FILE BY ORDER DY. REGISTRAR