M/s Bhuvneshwari Vyapaar Pvt. Ltd., Mumbai V. Pr.CIT-4, Kolkata

ITA 2311/KOL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0593 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 18-10-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAM BILASH MEENA
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside; Audi alteram partem
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A, BENC H KOLKATA BEFORE SHRI S.S.GODARA, JM &DR. A.L.SAINI, AM ./ITA NO.2311/KOL/2019 ( / ASSESSMENT YEAR:2010-11) M/S BHUVNESHEWARI VYAPAAR PVT. LTD. 710, A WING DATTANI PLAZA, COMMERCIAL PREMISES, SAFED POOL, ANDHERI(E), MUMBAI- 400072. VS. PCIT-4, KOLKATA ./ ./PAN/GIR NO.: AADCB 4368 N (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI SOMNATH GHOSH, ADVOCATE RESPONDENT BY : SHRI RAM BILASH MEENA, CIT DR / DATE OF HEARING : 24/12/2019 /DATE OF PRONOUNCEMENT : 24/12/2019 / O R D E R DR. A.L. SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERT AINING TO ASSESSMENT YEAR 2010-11, IS DIRECTED AGAINST THE ORDER PASSED BY TH E LD. PRINCIPAL COMMISSIONER OF INCOME TAX(PCIT), KOLKATA U/S 263 OF THE INCOME TA X ACT, 1961 (IN SHORT THE ACT) DATED 13/03/2019. 2. IN THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE CORRECTNESS OF THE ORDER PASSED BY THE LD. PCIT U/S 263 OF THE ACT. AT THE OUTSET ITSE LF, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT DURING THE PROCEEDINGS U/S 263 OF TH E ACT, THE NOTICE OF HEARING ISSUED BY THE LD PCIT HAS NOT BEEN SERVED ON THE AS SESSEE. THE LD PCIT ISSUED NOTICE TO THE ASSESSEE ON 19.02.2018 AND 01.03.2018 , BOTH THESE NOTICES WERE NOT M/S BHUVNESHEWARI VYAPAAR PVT. LTD. ITA NO.2311/KOL/2019 ASSESSMENT YEAR:2010-11 P PP PA AA AG GG GE EE E | || | 2 22 2 SERVED ON THE ASSESSEE. THE LD COUNSEL FURTHER SUBM ITTED THAT ASSESSEE`S OLD ADDRESS AND NEW ADDRESS WERE SAME BUT IN SPITE OF T HIS DUE TO POSTAL ANOMALIES THESE NOTICES WERE NOT SERVED ON THE ASSESSEE THERE FORE ASSESSEE COULD NOT REPLY THESE NOTICES, HENCE AN ANOTHER OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSEE TO PRESENT HIS CASE BEFORE LD PCIT. ON THE OTHER HAND, THE LD. D.R. FOR THE REVENUE FAI RLY AGREED THAT THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE AND STATED BEFO RE THE BENCH THAT THERE IS NO REQUIREMENT TO GIVE THE NOTICE U/S 263 OF THE ACT B UT AN OPPORTUNITY OF BEING HEARD SHOULD BE GIVEN TO THE ASSESSEE, WHICH IS ABSENT IN THE ASSESSEE`S CASE. THE LD DR DID NOT OBJECT IF THE ISSUE IS REMITTED BACK TO THE FILE OF THE LD PCIT. 3. WE HEARD BOTH THE PARTIES AND CAREFULLY GONE THR OUGH THE SUBMISSION PUT FORTH ON BEHALF OF THE ASSESSEE ALONG WITH THE DOCUMENTS FURNISHED AND THE CASE LAWS RELIED UPON, AND PERUSED THE FACT OF THE CASE INCLU DING THE FINDINGS OF THE LD CIT(A) AND OTHER MATERIALS AVAILABLE ON RECORD. WE NOTE THAT SUB-SECTION (1) OF SECTION 263 OF THE ACT STATES THAT AN OPPORTUNITY O F BEING HEARD SHOULD BE GIVEN TO THE ASSESSEE AND IT IS NOT MANDATORY FOR THE LD. PC IT TO ISSUE THE NOTICE TO THE ASSESSEE, WHAT IS REQUIRED IS THAT AN OPPORTUNITY O F BEING HEARD SHOULD BE GIVEN TO THE ASSESSEE. AT THIS JUNCTURE, IT IS APPROPRIATE T O REFER THE PROVISION OF SUB-SECTION (1) OF SECTION 263 OF THE ACT WHICH READS AS FOLLOW S: THE COMMISSIONER MAY CALL FOR AND EXAMINE THE RECO RD OF ANY PROCEEDING UNDER THIS ACT, AND IF HE CONSIDERS THAT ANY ORDER PASSED THEREIN BY THE ASSESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE, HE, MAY, AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING H EARD AND AFTER MAKING OR CAUSING TO BE MADE SUCH INQUIRY AS HE DEEMS NECESSA RY, PASS SUCH ORDER THEREON AS THE CIRCUMSTANCES OF THE CASE JUSTIFY, INCLUDING AN ORDER ENHANCING OR MODIFYING THE ASSESSMENT, OR CANCELLING THE ASSESSM ENT AND DIRECTING A FRESH ASSESSMENT. THEREFORE, IT IS EVIDENTLY CLEAR THAT AS PER THE PROVISION OF SUB-SECTION (1) OF SECTION 263, AN OPPORTUNITY OF BEING HEARD SHOULD B E GIVEN TO THE ASSESSEE WHICH IN THE ASSESSEES CASE IS ABSENT. M/S BHUVNESHEWARI VYAPAAR PVT. LTD. ITA NO.2311/KOL/2019 ASSESSMENT YEAR:2010-11 P PP PA AA AG GG GE EE E | || | 3 33 3 4. WE NOTE THAT LEGAL MAXIMS, AUDI ALTERAM PARTEM LITERALLY MEANS HEAR THE OTH ER PARTY. THIS MAXIM IS BASED ON THE PRINCIPLE OF NAT URAL JUSTICE. IT MEANS THAT A PERSON DECIDING ON ISSUE SHOULD HEAR BOTH SIDES AND GIVE E ACH AN OPPORTUNITY OF HEARING WHAT IS BEING ALLEGED AGAINST HIM. IT HAS LONG BEEN AN ACCE PTED RULE THAT NO ONE IS TO BE CONDEMNED, PUNISHED OR DEPRIVED OF PROPERTY IN ANY JUDICIAL OR QUASI-JUDICIAL PROCEEDING UNLESS HE HAS HAD AN OPPORTUNITY OF BEING HEARD.ANY PERSON AGAINST WHOM AN ACTION IS PROPOSED TO BE TAKEN OR WHOSE RIGHT OR INTEREST IS BEING AFFECTED, SHOULD BE GIVEN A REASONABLE OPPORTUNITY TO DEFEND HIMSELF. A DECISIO N TAKEN WITHOUT AFFORDING BOTH THE PARTIES AN OPPORTUNITY TO BE HEARD VIOLATES THE PRI NCIPLES OF NATURAL JUSTICE. AN AWARD MADE IN VIOLATION OF THE ABOVE SAID RULE MAY BE SET ASIDE. ON LAYING OF CHARGES, AN OPPORTUNITY TO ANSWER IT MUST BE GIVEN TO AN INDIVI DUAL ALLEGED TO HAVE COMMITTED AN OFFENCE. SUFFICIENT NOTICE ALSO SHOULD BE GIVEN TO THE PERSON AGAINST WHOM THE CHARGE IS LAID. THIS RULE HAS A UNIVERSAL ACCEPTANCE AND IS F OUNDED UPON THE PLAINEST PRINCIPLES OF JUSTICE. THEREFORE KEEPING IN MIND THE PRINCIPLE OF NATURAL JUSTICE, WE ARE OF THE VIEW THAT ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE ASSESSE E TO PLEAD HIS CASE BEFORE THE LD PCIT. HENCE, WE THINK IT FIT AND APPROPRIATE TO REMIT THIS ISSUE BACK TO THE FILE OF LD. PCIT FOR DE NOVO ADJUDICATION AFTER GIVING S UFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE MADE IT CLEAR THAT WE HAV E NOT EXPRESSED OUR OPINION ON ANY OF THE ISSUE RAISED HEREIN ON MERITS. THE ASSES SEE IS ALSO DIRECTED TO SUBMIT THE REQUIRED DOCUMENTS AND EVIDENCES AS CALLED FOR BY T HE LD. PCIT DURING THE PROCEEDINGS U/S 263 OF THE ACT. FOR STATISTICAL PUR POSES, THE APPEAL OF THE ASSESSEE IS ALLOWED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 24.12.2019 SD/- ( S.S.GODARA ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; / DATE:24/12/2019 ( SB, SR.PS ) M/S BHUVNESHEWARI VYAPAAR PVT. LTD. ITA NO.2311/KOL/2019 ASSESSMENT YEAR:2010-11 P PP PA AA AG GG GE EE E | || | 4 44 4 COPY OF THE ORDER FORWARDED TO: 1. M/S BHUVNESHEWARIVYAPAAR PVT. LTD. 2. PCIT-4, KOLKATA 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATABENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES