M/s Gour Construction, Hooghly V. The ITO-TDS, Hooghly, Hooghly

ITA 1518/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1467 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 21-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: T VARKEY JUDIC IA L M EMBER
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

, D , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI ABY.T VARKEY, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 1518 / KOL / 2016 ASSESSMENT YEAR:2009-10 M/S GOUR CONSTRUCTION 14/1, DR. P.T. LAHA STREET, P.O. RISHRA, DIST. HOOGHLY WEST BENGAL-712248 [ PAN NO.AAHFG 0357 P ] V/S . INCOME TAX OFFICER-TDS, HOOGHLY, ASYAKAR BHAWAN, KHADINAMORE, CHINSHURA, HOOGHLY, PIN 712101 PAN NO. /APPELLANT .. / RESPONDENT /BY APPELLANT NONE /BY RESPONDENT SHR AARIINDAMA BHATTAHERJEE, ADDL. CIT-DR /DATE OF HEARING 04-02-2018 /DATE OF PRONOUNCEMENT 21-02-2018 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-21, KOLKATA DA TED 21.04.2016. ASSESSMENT WAS FRAMED BY ITO, TDS HOOGHLY U/S 221 O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HI S ORDER DATED 20.12.2012 FOR ASSESSMENT YEAR 2009-10. 2. AT THE TIME OF HEARING, WE FIND THAT NEITHER ANY BODY APPEARED ON BEHALF OF ASSESSEE NOR ANY APPLICATION FOR ADJOURNMENT WAS FILED FROM ASSESSEE. HOWEVER, WE NOTICED THAT THE LD. CIT(A) HAS PASSED THE EX-PARTE ORDER. THEREFORE, WE DECIDED TO DISPOSE OF THE APPEAL AFTE R CONSIDERING THE MATERIALS ITA NO.1518/KOL/2016 A.Y.200 9-10 M/S GOUR CONSTRUCTION VS. ITO TDS HGLY PAGE 2 AVAILABLE ON RECORDS AND WITHOUT THE APPEARANCE OF THE ASSESSEE AFTER HEARING LD. DR FOR THE REVENUE. 3. AT THE OUTSET, IT WAS OBSERVED FROM THE ORDER OF LD. CIT(A) THAT THE CASE WAS FIXED FOR HEARING ON VARIOUS OCCASIONS BUT THE ASSESSEE MOST OF THE TIME WAS ABSENT. THEREFORE, THE APPEAL WAS DECIDED BY LD . CIT(A) AS EX PARTE ON 21.04.2016. AGAINST THE IMPUGNED EX PARTE ORDER OF LD. CIT(A) ASSESSEE FILED AN APPEAL BEFORE US AND SUBMITTED IN GROUNDS OF APP EAL THAT THE IMPUGNED ORDER HAS BEEN PASSED WITHOUT GIVING OPPORTUNITY TO THE ASSESSEE. 4. ON PERUSAL OF APPELLATE ORDER, WE FIND THAT LD. CIT(A) AFFIRMED THE ACTION OF ASSESSING OFFICER EX PARTE WITHOUT MENTIO NING ANY REASON FOR CONFIRMING THE SAME ON MERITS. THE PROVISIONS OF SE CTION 250(6) OF THE ACT REQUIRE THE COMMISSIONER (APPEAL) TO DISPOSE OF THE APPEAL IN WRITING WITH REASONING. THUS, IN SUCH CIRCUMSTANCES WE FIND THAT THE LD. CIT(A) HAS NOT ALLOWED PROPER OPPORTUNITY OF BEING HEARD. THE PRIN CIPLE OF AUDI ALTERAM PARTEM IS THE BASIC CONCEPT OF NATURAL JUSTICE. THE EXPRE SSION AUDI ALTERAM PARTEM IMPLIES THAT A PERSON MUST BE GIVEN AN OPPORTUNIT Y 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, D ISCLOSURE OF EVIDENCE TO PARTY, REPORT OF ENQUIRY TO BE SHOWN TO THE OTHER P ARTY AND REASONED DECISIONS OR SPEAKING ORDERS. WE TOOK THIS GUIDANCE FOR RIGHT OF HEARING, FROM THE RATIO AS IS LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF MANEKA GANDHI V. UNION OF INDIA , WHEREIN HON'BLE SUPREME COURT HAS LAID DOWN 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 IN THIS INSTANT CASE, THE ASSESSEE WAS NOT GIVEN PR OPER 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 EX ERCISE OF POWER CONFERRED UNDER RULE 28 OF TRIBUNAL RULES, WE RESTORE THIS AP PEAL TO THE FILE OF LD. CIT(A) FOR RECONSIDERATION ALL GROUNDS OF APPEAL AF TER ALLOWING PROPER ITA NO.1518/KOL/2016 A.Y.200 9-10 M/S GOUR CONSTRUCTION VS. ITO TDS HGLY PAGE 3 OPPORTUNITY OF BEING HEARD IN ACCORDANCE WITH LAW. NEVERTHELESS, TO MENTION THAT THE ASSESSEE WILL COOPERATE IN THE APPEAL PROC EEDINGS AND ITS FAILURE WILL ENTAIL CONFIRMATION OF THE IMPUGNED ADDITION MADE B Y THE AO. THE ASSESSEE WILL FILE NECESSARY EVIDENCES ON WHICH HE WANTS TO RELY UPON. HENCE, THIS GROUND OF ASSESSEES APPEAL STANDS ALL OWED FOR STATISTICAL PURPOSE. 5. IN THE RESULT, FOR STATISTICAL PURPOSE THE APPEAL O F ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 21/02/2018 SD/- SD/- (ABY. T. VARKEY) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP #- 21 / 02 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M/S GOUR CONSTRUCTION, 14/1, DR. P.T. LA HA STREET, P.O. RISHRA DIST. HOOGHLY, W EST BENGAL,-712248 2. /RESPONDENT-ITO, TDS, HOOGHLY, AAYAKAR BHAWAN, KHAD INAMORE, CHINSHRAH HOOGHLY, PIN 71 2101 3. / 0 / CONCERNED CIT KOLKATA 4. 0- / CIT (A) KOLKATA 5. 3 66/, /, / DR, ITAT, KOLKATA 6. 9 / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO /,