Shri Viralkumar A. Gandhi, Ahmedabad V. The Income Tax Officer, Ward-3, Bharuch

ITA 2309/AHD/2014

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 2022 (ITAT-SURAT)
• Duration Of Justice: 4 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 11-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: KETAN H SHAH
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 68; 143(3)

Judgement Text

SHRI VIRALKUMAR A. GANDHI V. INCOME-TAX OFFICERWD-3 BHARUCH /I.T.A. NO.2309/AHD/2014/A.Y.:09-10 PAGE 1 OF 4 , , IN THE INCOME TAX APPELLATE TRIBUNAL-SURAT BENCH, SURAT . . , . . , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . . ./ I.T.A NO.2309/AHD/2014: / ASSESSMENT YEAR: 2009-10 SHRI VIRALKUMAR A. GANDHI, THROUGH POWER OF ATTORNEY HOLDER PIYUSH A. GANDHI C/O KETAN H SHAH, ADVOCATE 903, SAPPHIRE COMPLEX CG ROAD NAVRANGPURA AHMEDABAD PAN: AHBPG 5883D V S . INCOME TAX OFFICER, WARD-3, BHARUCH 399001 APPELLANT /RESPONDENT /ASSESSEE BY SHRI KETAN H. SHAH, ADVOCATE /REVENUE BY SHRI DILIP KUMAR, SR. D.R. / DATE OF HEARING: 11.10.2018 /PRONOUNCEMENT ON 1 6 .10.2018 /O R D E R PER O. P. MEENA, ACCOUTANT MEMBER: 1 THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER DATED 04.10.2013 OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-VI, BARODA [HEREINAFTER REFERRED TO AS THE CIT (A)]. THIS APPEAL PERTAINS TO ASSESSMENT YEAR 2009-10. WHICH IN TURN AROSE FROM THE ASSESSMENT ORDER DATED 02.12.2011 PASSED U/S. 143(3) R.W.S. 144 OF INCOME TAX ACT,1961 (HEREIN AFTER REFERRED TO AS 'THE ACT) BY THE ITO WARD-3 SHRI VIRALKUMAR A. GANDHI V. INCOME-TAX OFFICERWD-3 BHARUCH /I.T.A. NO.2309/AHD/2014/A.Y.:09-10 PAGE 2 OF 4 BHARUCH [HEREINAFTER REFERRED TO AS THE AO] AGAINST THE GROUND THAT CIT (A) WAS NOT JUSTIFIED IN CONFIRMING ADDITION OF RS.58,93,903 UNDER SECTION 68 AND RS.58,470 BEING DISALLOWANCE OF VARIOUS EXPENSES. 2 AT THE OUTSET, THE LEARNED COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT ASSESSMENT ORDER FOR THE IMPUGNED ASSESSMENT YEAR UNDER CONSIDERATION HAS BEEN FRAMED UNDER SECTION 143 (3) READ WITH SECTION 144 OF THE ACT EX-PARTE WITHOUT AFFORDING SUFFICIENT TIME AND OPPORTUNITIES TO THE ASSESSEE BY THE AO. THE LD. CIT (A) HAS ADJUDICATED COMPLICATED ISSUES EX-PARTE WITHOUT ALLOWING REBUTTAL OF THE FINDINGS OF THE AO. THE REVENUE AUTHORITIES OUGHT TO HAVE APPRECIATED THAT THE ASSESSEE HAS LEFT INDIA FROM 07.11.2011 AND THEREFORE, VARIOUS NOTICES ISSUED TO HIM COULD NOT BE SERVED UPON HIM, WHICH PREVENTED THE ASSESSEE FROM COMPLYING WITH NOTICES AND RESULTANT ATTENDANCE OF HEARING. THEREFORE, THE LEARNED COUNSEL FOR THE ASSESSEE URGED BEFORE US THAT ONE MORE OPPORTUNITY OF BEING HEARD MAY BE GRANTED TO THE ASSESSEE TO MAKE GOOD HIS SUBMISSIONS WITH RELEVANT EVIDENCE TO THE SATISFACTION OF REVENUE AUTHORITIES BY SETTING ASIDE THE APPEAL TO THE FILE OF THE AO. THEREFORE, THE LEARNED COUNSEL FOR THE ASSESSEE REQUESTED THAT THE WHOLE ASSESSMENT MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR A DE-NOVO CONSIDERATION. SHRI VIRALKUMAR A. GANDHI V. INCOME-TAX OFFICERWD-3 BHARUCH /I.T.A. NO.2309/AHD/2014/A.Y.:09-10 PAGE 3 OF 4 3 THE LEARNED D.R. HAS OPPOSED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE BUT DID NOT TAKE SERIOUS VIEW ON THE PLEA OF THE ASSESSEE. 4 WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. WE FIND THAT THE ASSESSMENT UNDER CONSIDERATION HAS BEEN PASSED EX-PARTE UNDER SECTION 143(3) READ WITH SECTION 144 OF THE ACT BY THE AO. THE AO THOUGH AFFORDED NUMBER OF OPPORTUNITIES BUT THE ASSESSEE HAS FAILED TO RESPOND THE SAME. THE LD. CIT (A) HAS ALSO DECIDED THE APPEAL EX-PARTE WITHOUT ALLOWING 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. THIS PRINCIPLE IS SINE QUA NON OF EVERY CIVILIZED SOCIETY. THE RIGHT TO NOTICE, RIGHT TO PRESENT CASE AND EVIDENCE, RIGHT TO 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 PARTY AND REASONED DECISIONS OR SPEAKING ORDERS ARE MUST. WE FIND THE GUIDANCE FOR RIGHT OF HEARING, AS IS LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF MANEKA GANDHI V. UNION OF INDIA, WHEREIN HON'BLE SUPREME COURT HAS HELD 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 SHRI VIRALKUMAR A. GANDHI V. INCOME-TAX OFFICERWD-3 BHARUCH /I.T.A. NO.2309/AHD/2014/A.Y.:09-10 PAGE 4 OF 4 PARTEM. WE FIND THAT IN THIS INSTANT CASE, THE ASSESSEE WAS NOT GIVEN PROPER HEARING. THEREFORE, WE ARE OF THE VIEW THAT THE ASSESSEE MUST BE GIVEN ONE MORE OPPORTUNITY 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 THE LD. ASSESSING OFFICER FOR ALLOWING PROPER OPPORTUNITY OF BEING HEARD IN ACCORDANCE WITH LAW. NEVERTHELESS, TO MENTION THAT THE ASSESSEE WILL COOPERATE IN THE APPEAL PROCEEDINGS AND FILE NECESSARY EVIDENCES ON WHICH HE WANTS TO RELY UPON. 5 IN THE RESULT, THE APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION IS ALLOWED FOR STATISTICAL PURPOSES. 6 THE ORDER PRONOUNCE IN THE OPEN COURT ON 16.10.2018. SD/- SD/- ( . . /C.M. GARG) ( . . /O.P.MEENA) / J.M. /A.M. DATED: 16.10.2018. / COPY OF THE ORDER IS FORWARDED TO : 1. ; 2. 3. ( ) 4. 5. , 6. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT