IPB Dealers Pvt. Ltd., Kolkata V. ITO, Ward - 6(2), Kolkata, Kolkata

ITA 2082/KOL/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6570 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 21-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR CIT SRDR
• Assessee Lawyers: MONISH TIWARI
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI N.V.VASUDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 2082 / KOL / 20 17 ASSESSMENT YEAR :2012-13 IPB DEALERS PVT. LTD., C/O PUSHKAR MALA TODI (HUF) MERCANTILE BUILDING, 9, LALBAZAR STEET, BLOCK- A, 1 ST FLOOR, ROOM NO.1076A, KOLKATA-001 [ PAN NO.AACCJ 6393 P ] V/S . INCOME TAX OFFICER, WARD-6(2), AAYKAR BHHAWAN, P-7, CHOWRINGHEE SQUARE, KOKATA-69 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI MONISH TIWARI, AR /BY RESPONDENT SHRI SAURABH KUMAR, ADDL. CIT-SR-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 2012-13 EX PARTE ORDER PASSED BY LD. COMMISSIONER OF INCOME TA X (APPEALS)-2, KOLKATA DATED 04.08.2017. SHRI MANISH TIWARI, LD. AUTHORIZED REPRESENTATIVE A PPEARED ON BEHALF OF ASSESSEE AND SHRI SAURABH KUMAR, LD. DEPARTMENTAL R EPRESENTATIVE 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 31.07.20 17 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.2082/KOL/2017 A.Y. 20 12-13 IPB DEALERS PVT. LTD. VS. ITO WD-6(2 ), 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 ON EX PARTE ORDER. THE PROVISI ONS OF SECTION 250(6) OF THE ACT REQUIRE THE COMMISSIONER (APPEAL) TO DISPOSE OF THE APPEAL IN WRITING WITH REASONING. BUT WE FIND FROM THE IMPUGNED ORDER OF L D. CIT(A) WHO CONFIRMED THE ORDER OF AO WITHOUT DECIDING THE SAME ON MERIT. WE FIND THAT THE LD. CIT (A) HAS NOT ALLOWED PROPER OPPORTUNITY OF BEING HEA RD. THE PRINCIPLE OF AUDI ALTERAM PARTEM IS THE BASIC CONCEPT OF NATURAL JUSTICE. THE EXPRE SSION AUDI ALTERAM PARTEM IMPLIES THAT A PERSON MUST BE GIVEN AN OPPORTUNIT Y TO DEFEND HIMSELF. THIS PRINCIPLE IS SINE QUA NON OF EVERY CIVILIZED SOCIETY. THE RIGHT TO NOTICE, RIGHT TO PRESENT CASE AND EVIDENCE, RIGHT T O REBUT ADVERSE EVIDENCE, RIGHT TO CROSS EXAMINATION, RIGHT TO LEGAL REPRESENTATION , DISCLOSURE OF EVIDENCE TO PARTY, REPORT OF ENQUIRY TO BE SHOWN TO THE OTHER P ARTY 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. THEREFORE, WE ARE OF THE VIEW THAT THE ASSESSEE MUS T BE GIVEN ONE MORE OPPORTUNITY OF HEARING AND TO REPRESENT HIS CASE. T HEREFORE, IN EXERCISE OF POWER CONFERRED UNDER RULE 28 OF TRIBUNAL RULES, WE RESTO RE THIS APPEAL TO THE FILE OF LD. CIT (A) FOR RECONSIDERATION ALL GROUNDS OF APPE AL AFTER ALLOWING PROPER OPPORTUNITY OF BEING HEARD IN ACCORDANCE WITH LAW. NEVERTHELESS, TO MENTION THAT THE ASSESSEE WILL COOPERATE IN THE APPEAL PROC EEDINGS AND HIS FAILURE WILL ENTAIL CONFIRMATION OF THE IMPUGNED ADDITION MADE B Y THE AO. THE ASSESSEE WILL ITA NO.2082/KOL/2017 A.Y. 20 12-13 IPB DEALERS PVT. LTD. VS. ITO WD-6(2 ), KOL. PAGE 3 FILE NECESSARY EVIDENCES ON WHICH HE WANTS TO RELY UPON. HENCE, THIS GROUND OF ASSESSEES APPEAL STANDS ALLOWED FOR STATISTICAL PU RPOSE. 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-IPB DEALERS PVT. LTD., C/O PUSHKAR MAL T ODI (HUF) MERCANTILE BUILD ING, 9 LALBARAR ST. BLOCK-A, 1 ST FL, R.NO.1076A,KOL-01 2. /RESPONDENT-ITO WARD-6(2), AAYKAR BHAWAN, P-7, CHOW RINGHEE 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,