Sattva Developers pvt. Ltd., Kolkata V. DCIT, Cir-5(1), Kolkata, Kolkata

ITA 176/KOL/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6558 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 02-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACHERYA
• Assessee Lawyers: A K TIBREWAL
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

, D , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI N.V.VASUDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 176 / KOL / 20 17 ASSESSMENT YEAR :2009-10 SATTVA DEVELOPERS PVT. LTD., ANAND JYOTI, 41, NETAJI SUBAHAS ROAD, 4 TH FLOOR, ROOM NO.404, KOLKATA-001 [ PAN NO.AACCJ 6393 P ] V/S . DCIT, CIRCLE-5(1), AAYKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-69 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI A.K. TIBREWAL, FCA /BY RESPONDENT SHRI ARINDAM BHATTACHERYA, ADDL. CIT-DR /DATE OF HEARING 01-03-2018 /DATE OF PRONOUNCEMENT 20-04-2018 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL FILED BY ASSESSEE PERTAINING TO ASSESS MENT YEAR 2009-10 EX PARTE ORDER PASSED BY LD. COMMISSIONER OF INCOME TA X (APPEALS)-2, KOLKATA DATED 28.11.2016. SHRI A.K. TIBREWAL, LD. AUTHORIZED REPRESENTATIVE A PPEARED ON BEHALF OF ASSESSEE AND SHRI ARINDAM BHATTCHERYA, LD. DEPARTME NTAL REPRESENTATIVE APPEARED ON BEHALF OF REVENUE. 2. AT THE OUTSET, IT WAS OBSERVED FROM THE ORDER OF LD. CIT(A) THAT THE LAST DATE OF HEARING OF THE APPEAL WAS FIXED ON 22.11.20 16 BUT NONE-APPEARED ON BEHALF OF ASSESSEE. THEREFORE, THE LD. CIT(A) PASSE D EX PARTE ORDER DUE TO NON APPEARANCE OF THE ASSESSEE. AGAINST THE IMPUGNED EX PARTE ORDER OF LD. CIT(A) ITA NO.176/KOL/2017 A.Y. 200 9-10 SATTVA DEVELOPERS PVT. LTD. VS. DCIT, CIR-5(1),KOL. PAGE 2 ASSESSEE FILED AN APPEAL BEFORE US AND PLEADED IN T HE GROUNDS OF APPEAL THAT THE IMPUGNED ORDER HAS BEEN PASSED WITHOUT GIVING OPPOR TUNITY TO THE ASSESSEE. 3. ON PERUSAL OF APPELLATE ORDER, WE FIND THAT LD. CIT(A) AFFIRMED THE ACTION OF ASSESSING OFFICER WITHOUT DECIDING THE ISSUE RAI SED BEFORE HIM ON MERITS. THE PROVISIONS OF SECTION 250(6) OF THE ACT REQUIRE THE COMMISSIONER (APPEAL) TO DISPOSE OF THE APPEAL IN WRITING WITH REASONING. BU T WE FIND FROM THE IMPUGNED ORDER OF LD. CIT(A) WHO CONFIRMED THE ORDER OF AO W ITHOUT DECIDING THE SAME ON MERIT. WE FIND THAT THE LD. CIT (A) HAS NOT ALLO WED PROPER OPPORTUNITY OF BEING HEARD. THE PRINCIPLE OF AUDI ALTERAM PARTEM IS THE BASIC CONCEPT OF NATURAL JUSTICE. THE EXPRESSION AUDI ALTERAM PARTEM IMPLIES THAT A PERSON MUST BE GIVEN AN OPPORTUNITY TO DEFEND HIMSELF. THI S PRINCIPLE IS SINE QUA NON OF EVERY CIVILIZED SOCIETY. THE RIGHT TO NOTICE, R IGHT TO PRESENT CASE AND EVIDENCE, RIGHT TO REBUT ADVERSE EVIDENCE, RIGHT TO CROSS EXAMINATION, RIGHT TO LEGAL REPRESENTATION, DISCLOSURE OF EVIDENCE TO PAR TY, REPORT OF ENQUIRY TO BE SHOWN TO THE OTHER PARTY 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 IN 1978 SCR (2) 621 , 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 PROPER HEARING. TH EREFORE, WE ARE OF THE VIEW THAT THE ASSESSEE MUST BE GIVEN ONE MORE OPPORTUNIT Y OF HEARING AND TO REPRESENT HIS CASE. THEREFORE, IN EXERCISE OF POWER CONFERRED UNDER RULE 28 OF TRIBUNAL RULES, WE RESTORE THIS APPEAL TO THE FILE OF LD. CIT (A) FOR RECONSIDERATION OF ALL GROUNDS OF APPEAL AFTER ALLO WING PROPER OPPORTUNITY OF BEING HEARD IN ACCORDANCE WITH LAW. NEVERTHELESS, T O MENTION THAT THE ASSESSEE WILL COOPERATE IN THE APPEAL PROCEEDINGS AND HIS FA ILURE WILL ENTAIL CONFIRMATION OF THE IMPUGNED ADDITION MADE BY THE AO. THE ASSESS EE WILL FILE NECESSARY ITA NO.176/KOL/2017 A.Y. 200 9-10 SATTVA DEVELOPERS PVT. LTD. VS. DCIT, CIR-5(1),KOL. PAGE 3 EVIDENCES ON WHICH HE WANTS TO RELY UPON. HENCE, TH IS GROUND OF ASSESSEES APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSE. 4. IN THE RESULT, FOR STATISTICAL PURPOSE, APPEAL OF A SSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 20/ 04/2018 SD/- SD/- ($ &) ( &) (N.V.VASUDEVAN) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP, SR.P.S (- 20 / 04 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-SATTVA DEVELOPERS PVT. LTD., ANAND JYOT I, 41, NETAJI SUBHAS ROAD 4 TH FLOOR, ROOM NO.404, KOLKATA-001 2. /RESPONDENT-DCIT, CIR-5(1), AAYKAR BHAWAN, P-7, CHO WRINGHEE STREET, KOL-69 3. 3 4 / CONCERNED CIT KOLKATA 4. 4- / CIT (A) KOLKATA 5. 7 $$3, 3, / DR, ITAT, KOLKATA 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO 3,