Nirmal Kumar Saraf, CHURU V. ITO, CHURU

ITA 19/JODH/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9630 (ITAT-JODHPUR)
• Duration Of Justice: 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 13-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MEENA
• Keywords: Principle of natural justice

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER ITA NO. 19 /JODH/201 7 ASSESSMENT YEAR: 2006 - 07 NIRMAL KUMAR SARAF VS. THE ITO PROP. M/S. OMKAR FIREWORKS WARD - 2 SURAJGARH, CHURU CHURU PAN NO. A PDPS7979L (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SH. S.K. MEENA DATE OF HEARING : 2 8 /02/2017 DATE OF PRONOUNCEMENT : 02/03/2017 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DT. 03 / 10 /2016 OF LD. CIT(A) , JAIPUR PERTAINING TO 20 06 - 20 07 ASSESSMENT YEAR ON VARIOUS GROUNDS INCLUDING LACK OF OPPORTUNITY. 2. AT THE TIME OF HEARING AN ADJOURNMENT APPLICATION WAS MOVED BY THE COUNSEL ON BEHALF OF THE ASSESSEE PLEADING INABILITY TO BE PRESENT ON THE DATE OF HEARING. H OWEVER SINCE THE PRESENT APPEAL COULD BE DECIDED ON THE BASIS OF MATERIAL AVAILABLE ON RECORD I T WAS CONSIDERED APPROPRIATE TO PROCEED WITH THE SAME EXPARTE QUA THE ASSESSEE APPELLANT ON MERIT AFTER HEARING THE LD. SR. DEPARTMENTAL REPRESENTATIVE. ACCORDINGLY THE ADJOURNMENT APPLICATION WAS REJECTED. 3. THE R ECORD SHOWS THAT THE ASSESING OFFICER LEVIED PENALTY OF RS. 52,370/ - UNDER SECT ION 271(1)(C) VIDE PENALTY ORDER DT. 24/04/2012 CONSIDERING THE ORDER 2 OF THE ITAT IN THE QUANTUM PROCEEDING. THE SAID PENALTY ORDER WAS CHALLENGED IN THE APPEAL BEFORE THE LD. CIT(A). A PERUSAL OF THE SAID ORDER SHOWS THAT THE LD. CIT(A) PASSED AN EXPARTE ORDER CONFIRMING THE PENALTY ORDER OF THE ASSESSING OFFICER. THE IMPUGNED ORDER IT IS SEEN IS PASSED WITHOUT ISSUING ANY NOTICE FOR ANY SPECIFIC DATE OF HEARING AND THE ASSESSEE AS NO REFERENCE TO ANY SPECIFIC DATE OF HEARING HAS BEEN MADE IN THE IMPUGNED ORDER. THE SAID EXERCISE OF POWERS IS CONTRARY TO THE STATUTORY PROCEDURE AS SET OUT IN SECTION 250 OF THE INCOME TAX ACT. SUB SECTION(1) OF SECTION 250 OF THE ACT REQUIRES THE COMMISSIONER(APPEALS) TO FIX THE DATE AND PLACE OF HEARING OF THE APPEAL AND I S ENJOINED TO GIVE NOTICE OF THE SAME TO THE ASSESSEE. RIGHT TO BE HEARD HAS BEEN PROTECTED AND MANDATED BY SUB SECTION(2) OF SECTION 250 OF THE ACT, IT IS SEEN THAT THE SAID STATUTORY REQUIREMENTS HAVE NOT BEE FULFILLED BY THE LD. CIT(A). THE ORDER ACCORD INGLY CANNOT BE UPHELD. RIGHT TO BE HEARD IS AN IMPORTANT RIGHT TO WHICH A PARTY WHO IS FACED WITH AN ADVERSE VIEW IS ENTITLED TO AUDI ALTERAM PARTEM IS ONE OF THE MOST FAMOUS AND CELEBRATED RULE OF NATURAL JUSTICE. THE PRINCIPLES OF NATURAL JUSTICE ARE THOSE WHICH HAVE BEEN LAID OUT BY THE COURTS AS BEING THE MINIMUM PROTECTION OF THE RIGHTS OF AN INDIVIDUAL AGAINST THE ARBITRARY PROCEDURE THAT MAY BE ADOPTED BY A JUDICIAL, QUASI - JUDICIAL AND ADMINISTRATIVE AUTHORITY WHILE MAKING AN ORDER AFFECTING THOSE RIGHTS. A CAREFUL PERUSAL OF THE CONSISTENT JUDGEMENTS OF THE APEX COURT WOULD SHOW THAT IT HAS CONSISTENTLY BEEN HELD THAT THE RULES OF NATURAL JUSTICE ARE NOT EMBODIED RULES AND THE SAID PHRASE IS NOT AN CANNOT BE CAPABLE OF A PRECISE DEFINITION. THE U NDERLYING PRINCIPLE OF NATURAL JUSTICE EVOLVED UNDER THE COMMON LAW IS TO CHECK ARBITRARY EXERCISE OF POWER BY THE STATE OR ITS FUNCTIONARIES. ACCORDINGLY, THE PRINCIPLE BY ITS VERY NATURE IMPLIES THE DUTY TO ACT FAIRLY I.E. FAIR PLAY IN ACTION MUST BE EV IDENT AT EVERY STAGE. FAIR PLAY DEMANDS THAT NOBODY SHALL BE CONDEMNED UNHEARD. IN THE CELEBRATED JUDGEMENT OF THE APEX COURT IN THE CASE OF A.K.KRAIPAK - VS - UNION OF INDIA (1969)2SCC 262, IT IS OBSERVED THAT THE AIM OF RULES OF NATURAL JUSTICE IS TO SECURE JUSTICE OR TO PUT IT NEGATIVELY TO PREVENT MISCARRIAGE OF JUSTICE. 3 THE SAID RULES ARE MEANS TO AN END AND NOT AN END IN THEMSELVES AND THOUGH IT IS NOT POSSIBLE TO MAKE AN EXHAUSTIVE CATALOGUE OF SUCH RULES HOWEVER IT CAN BE READILY SAID THAT THERE ARE TWO BASIC MAXIMS OF NATURAL JUSTICE NAMELY AUDI ALTERAM PARTEM AND NEMO JUDEX IN RE SUA . IN THE PRESENT FACTS OF THE CASE WE ARE CONCERNED WITH THE MAXIM AUDI ALTERM PARTEM WHICH AGAIN MAY HAVE MANY FACETS TWO OF THEM (A) NOTICE OF THE CASE TO BE MET; A ND (B) OPPORTUNITY TO EXPLAIN. THEIR LORDSHIPS HAVE CAUTIONED THAT THESE RULES CANNOT BE SACRIFICED AT THE ALTAR OF THE ADMINISTRATIVE CONVENIENCE OR CELEBRITY. THUS, CONSIDERING THE AFORE - MENTIONED STATUTORY PROVISION AND THE PRINCIPLES OF NATURAL JUSTICE , THE ISSUE IS RESTORED BACK TO THE FILE OF THE CIT(A) TO MAKE GOOD THE STATUTORY DEFICIT. THE ADJOURNMENT APPLICATION OF THE ASSESSEE ACCORDINGLY IN VIEW OF THE SAME IT STOOD REJECTED WITH NOTING A PPLICATION REJECTED. RESTORED TO CIT(A) AS THE ORDER ST OOD PRONOUNCED ON THE DATE OF HEARING ITSELF. 4. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED ON 02/03/2017 IN THE OPEN C OURT . SD/ - (DIVA SINGH) JUDICIAL MEMBER DATED: 02/03/2017 AG COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT