Amar Nath Agarwal, HUF, Kanpur V. ITO, Kanpur

ITA 18/LKW/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9152 (ITAT-LUCKNOW)
• Duration Of Justice: 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 17-02-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 18-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K B AJAJ
• Keywords: Opportunity of being heard; Principle of natural justice; Right to appeal; Set aside
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SMC BENCH, LUCKNOW. BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT I.T.A.NO.18(LKW.)/2011 A.Y. :2001-02 AMAR NATH AGARWAL,HUF, VS. THE ITO,3(1), 50/2,NAUGHARA,KANPUR. KANPUR. PAN AAWHA9724M (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI P.K.BAJAJ, SR. D.R. O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. CIT(A), MUZAFFARNAGAR, HOLDING CONCURRENT CHARGE OF THE CIT(A)-II, KANPUR DATED 20.11.2010 RELATING TO THE ASSESSMENT YEAR 20 01-02. 2. IN THIS APPEAL, THE ASSESSEE HAS TAKEN THE FOLLO WING GROUNDS: 1. BECAUSE THE CIT(APPEALS) HAS ERRED ON FACTS AND IN LAW IN PASSING AN EX-PARTE ORDER DATED 20.11.2010 WHEN THE DATE FOR FILING THE WRITTEN SUBMISSIONS WAS 25.11.2010, WHIC H ORDER IS CONTRARY TO FACTS, BAD IN LAW AND BE QUASHED. 2. BECAUSE THE DATE OF HEARING/ TIME TO FILE THE WR ITTEN SUBMISSIONS WAS 25.11.2010, THE CIT (APPEALS) WAS NOT JUSTIFIED IN DISPOSING OF THE APPEAL ON 20.11.2010. 3. BECAUSE THE CIT (APPEALS) HAS FAILED TO APPRECIA TE THE FACTS AND CIRCUMSTANCES OF THE CASE AND HAS ARBITRARILY PROCE EDED TO DISPOSE OF THE APPEAL EX-PARTE. 2 4. BECAUSE WITHOUT PREJUDICE TO THE ABOVE, THE CIT (APPEALS) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITIO N OF RS.1,80,000/ - UNDER SECTION 68 OF THE I.T.ACT, 196 1. 5. BECAUSE IN ANY CASE AND IN ALL CIRCUMSTANCES OF THE CASE, THE ADDITION OF RS.1,80,000/ - MADE UNDER SECTION 68 OF THE ACT, IS CONTRARY TO FACTS BAD IN LAW AND BE OUGHT TO HAVE B EEN DELETED. 3. ON PERUSAL OF ENTIRE FACTS OF THE CASE, I FIND T HAT THE LD. CIT(A) HAS PASSED AN EX PARTE ORDER DATED 20.11.2010 WHEN THE DATE FOR FILING THE WRITTEN SUBMISSION WAS 25.11.2010. IN THAT VIEW OF THE MATTER, THE ORDER OF THE LD. CIT(A) IS CONTRARY TO FACTS, BAD IN LAW AND DESERVES TO BE QUASHED. EVEN OTHERWISE ALSO, THE LD. CIT(A) HAS NOT AFFORDE D AN ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE MATTER. 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 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 AUTHO RITY IS REQUIRED TO ACT IN A QUASI-JUDICIAL CAPACITY, IT IS IMPERATIVE TO GIVE T HE APPELLANT AN ADEQUATE OPPORTUNITY OF BEING HEARD BEFORE DECIDING THE APP EAL. THUS, CONSIDERING THE ENTIRE FACTS OF THE PRESENT CASE, I THINK IT PR OPER TO SET ASIDE THE ORDER OF THE LD.CIT(A) IN TOTO AND RESTORE THE MATTER TO HI S FILE WITH A DIRECTION TO DECIDE THE APPEAL AFRESH ON MERITS IN ACCORDANCE WI TH LAW AFTER AFFORDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. I ORDER ACCORDINGLY. IN VIEW OF THE ABOVE NO FINDINGS ARE BEING GIVEN O N MERITS. 4. BEFORE PARTING WITH THIS CASE, I ALSO DIRECT TH E LD.CIT(A) TO DECIDE THE APPEAL OF THE ASSESSEE PREFERABLY WITHIN TWO MONTHS FROM THE DATE OF RECEIPT 3 OF THIS ORDER. AT THE SAME TIME, I ALSO DIRECT THE ASSESSEE TO CO-OPERATE IN THE PROCEEDINGS BEFORE THE LD.CIT(A). 5. FOR STATISTICAL PURPOSES, THE APPEAL IS ALLOWED. THE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 17 .2.2011. SD. (H.L.KARWA) VICE PRESIDENT FEBRUARY 17TH, 2011. COPY TO THE : 1. APPELLANT 2. RESPONDENT 3. CIT(A) (4) CIT 5.DR. A.R.,ITAT, LUCKNOW. SRIVASTAVA.