Shri Atul Tripahi, Lucknow V. ITO, Lucknow

ITA 165/LKW/2010

• Counselvise Citation: 16523714 RSA 2010
• Duration Of Justice: 1 year(s) 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 05-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MITRA
• Assessee Lawyers: A P SINHA
• Keywords: Opportunity of being heard; Principle of natural justice; Right to appeal

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, A-BENCH, LUCKNOW. BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT AND SHRI N.K.SAINI, ACCOUNTANT MEMBER I.T.A.NO. 165(LUC.)/2010) A.Y. : 2006-07 SHRI ATUL TRIPATHI, VS. THE ITO, RANGE III, 9/11, RANA PRATAP MAG, LUCKNOW. LUCKNOW. PAN ADSPT3319G (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.P.SINHA, ADVOCATE. RESPONDENT BY : SHRI A.K.MITRA, 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 19.11.2009 RELATING TO THE ASSESSMENT YEAR 2006-07. 2. VIDE GROUNDS NO.5 AND 6 OF THE APPEAL, THE ASSESSEE HAS SUBMITTED THAT THE LD.CIT(A) WAS NOT JUSTIFIED IN PASSING EX PARTE ORDER WITHOUT PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. SHRI A.P.SINHA, ADVOCATE, LD. COUNSEL FOR THE ASSESSEE, AT THE VERY OUTSET, SUBMITTED THAT THE LD.CIT(A) HAS PASSED THE EX PARTE WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HE, THEREFORE, SUBMITTED THAT THE ORDER OF THE LD.CIT(A) MAY BE SET ASIDE AND THE MATTER BE 2 RESTORED TO THE FILE OF THE LD.CIT(A) FOR DECIDING THE APPEAL AFRESH ON MERITS AFTER PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HOWEVER, SHRI ALOK MITRA, LD.SR.D.R. SUBMITTED THAT THE LD.CIT(A) HAS AFFORDED AMPLE OPPORTUNITY OF BEING TO THE ASSESEE AND THEREFORE, THE CONTENTION RAISED BY SHRI A.P. SINHA, ADVOCATE, LEARNED COUNSEL FOR THE ASSESSEE DESERVES TO BE REJECTED. 4. AFTER CONSIDERING THE SUBMISSIONS OF THE LD. REPRESENTATIVES OF BOTH THE PARTIES, WE FIND THAT THE LD.CIT(A) HAS DECIDED THE APPEAL OF THE ASSESSEE EX PARTE. ON PERUSAL OF THE IMPUGNED ORDER, 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 OUR 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. 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. IT IS MADE CLEAR THAT THE LD.CIT(A) WILL DECIDE THE 3 APPEAL PREFERABLY WITHIN TWO MONTHS FROM THE DATE OF RECEIPT OF THE ORDER. IN VIEW OF THE ABOVE, NO FINDINGS ARE BEING GIVEN ON MERITS. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 1.7.2011. SD. SD. (N.K.SAINI) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT JULY 1ST ,2011. COPY TO THE : 1. APPELLANT 2. RESPONDENT 3. CIT(A) (4) CIT 5.DR. A.R.,ITAT, LUCKNOW. SRIVASTAVA.