Shri Harish Kumar Singh, Faizabad V. ITO, Faizabad

ITA 159/LKW/2011

• Counselvise Citation: 15923714 RSA 2011
• Duration Of Justice: 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2011
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 11-04-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 04-04-2011
• Court: TRIBUNAL
• Department Lawyers: P K B AJAJ
• Assessee Lawyers: A P SINGH
• Keywords: Opportunity of being heard; Principle of natural justice; Right to appeal
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL: LUCKNOW BENCH SMC, LUCKNOW (BEFORE HONBLE SHRI H. L. KARWA, VICE PRESIDENT) ITA NO.159/LKW/2011 ASSESSMENT YEAR:2004-05 HARISH KUMAR SINGH VILLAGE ADHIYARI MILKIPUR, FAIZABAD V. ITO-I FAIZABAD (APPELLANT) (RESPONDENT) PAN:ASVPS0703P APPELLANT BY: SHRI A.P. SINGH, ADVOCATE RESPONDENT BY: SHRI P.K. BAJAJ, D.R. O R D E R THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-I, LUCKNOW DATED 19.1.2011 RELATING TO ASSES SMENT YEAR 2004-05. 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLLOWI NG GROUNDS:- 1. THAT THE LEARNED CIT (APPEALS) HAS ERRED IN PASSING EX-PARTE APPELLATE ORDER WITHOUT AFFORDING REASONABLE OPPORT UNITY OF BEING HEARD AND EXPLAINING THE THINGS. 2. THAT THE LEARNED APPELLATE AUTHORITY HAS ERRED I N NOT CONSIDERING THE GROUNDS OF APPEAL EVEN THOUGH PASSING EX-PARTE ORDE R. 3. THAT THE LEARNED APPELLATE AUTHORITY HAS ERRED IN NOT CONSIDERING THE FACT THAT NO NOTICE U/S 148 HAS EVER BEEN SERVED ON THE APPELLANT AND MAKING ASSESSMENT WITHOUT ESTABLISHING THAT THE NOTICE HAS BEEN SERVED IS ILLEGAL. 4. THAT THE LEARNED CIT APPEALS HAS ERRED IN NOT C ONSIDERING THE FACT THE APPELLANT HAS DENIED BEFORE THE LEARNED ASSESSING A UTHORITY THAT HE HAD NO KNOWLEDGE ON ANY SUCH FIRM AND THAT HE IS NOT A PAR TNER AND HAS NOT MADE ANY INVESTMENT IN THIS ALLEGED FIRM. :-2-: 5. THAT THE CIT(A) HAS ERRED IN NOT CONSIDERING THE FACT THAT IN VIEW OF THE FACT OF THE DENIAL BY THE APPELLANT OF THE ALLE GED FIRM AND THE ALLEGED INVESTMENT, THE ADDITION BY THE LD. AO IS ILLEGAL A ND UNJUST. 6. THAT THE ORDER OF THE LD. CIT(A) IS ILLEGAL, UNJ UST AND BAD IN LAW. 3. AT THE VERY OUTSET, SHRI A.P. SINGH, THE LD. COUNSE L FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) HAS DECIDED THE APPEA L OF THE ASSESSEE EX- PARTE WITHOUT AFFORDING ADEQUATE OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE. HE, THEREFORE, SUBMITTED THAT THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THE MATTER MAY BE SENT BACK TO THE FI LE OF THE LD. CIT(A) WITH A DIRECTION TO DECIDE THE APPEAL OF THE ASSESSEE AF RESH ON MERITS IN ACCORDANCE WITH LAW. 4. SHRI P. K BAJAJ, LD. D.R. STRONGLY OPPOSED THE ABOV E CONTENTION OF THE ASSESSEE STATING THAT THE LD. CIT(A) HAS ALREAD Y AFFORDED SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THER EFORE NO RELIEF MAY BE GIVEN TO THE ASSESSEE AT THIS STAGE. 5. AFTER CONSIDERING THE GROUNDS RAISED BY THE ASSESSE E AND ALSO PERUSING THE ORDER OF THE CIT(A), I FIND THAT THE LD. CIT(A) HAS DECIDED THE APPEAL OF THE ASSESSEE EX-PARTE. ON A PERUSAL OF THE IMPUGNED ORD ER, IT WOULD BE CLEAR THAT THE LD. CIT(A) HAS NOT PROVIDED ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE APPEAL. IN MY OPINION, THE LD. CIT(A) SHOULD HAVE AFFORDED ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE APPEAL. IN THE CASE OF RADHIKA CHARAN BANERJEE VS. SAMBALPU R 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 OP PORTUNITY 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 :-3-: HEARD BEFORE DECIDING THE APPEAL. THUS, CONSIDERING THE ENTIRE FACTS OF THE PRESENT CASE, I THINK IT PROPER TO SET ASIDE THE ORDER OF T HE LD. CIT(A) IN TOTO AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO DECIDE T HE APPEAL PREFERABLY WITHIN TWO MONTHS FROM THE DATE OF RECEIPT OF ORDER, AFRESH ON MERITS IN ACCORDANCE WITH LAW AFTER AFFORDING DUE AND REASONABLE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. 6. IN VIEW OF THE ABOVE, NO FINDINGS ARE BEING GIVEN O N MERITS. 7. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICA L PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 11.4.201 1. SD/- [H. L. KARWA] VICE PRESIDENT DATED:11.4.2011 JJ:1104 COPY FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE DR ASSISTANT REGISTRAR