Sh. Subodh Parkash, Yamunanagar V. DCIT, Yamunanagar

ITA 251/CHANDI/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8535 (ITAT-CHANDIGARH)
• Duration Of Justice: 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 02-02-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 10-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Assessee Lawyers: MUHESH KUMAR
• Keywords: Opportunity of being heard; Principle of natural justice; Right to appeal
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, CHANDIGARH BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT & MS. RANO JAIN, ACCOUNTANT MEMBER ITA NO. 251/CHD/2015 ASSESSMENT YEAR: 2010-11 SH. SUBODH PARKASH, VS. THE DCIT, CIRCLE PROP. M/S AASTHA TRADING CO., YAMUNANAGAR YAMUNANAGAR PAN NO. ABBPP0664K (APPELLANT) (RESPONDENT) APPELLANT BY : SH. RUCHESH SINHA & MUHESH KUMAR RESPONDENT BY : SH. S.K. MITTAL DATE OF HEARING : 02.02.2016 DATE OF PRONOUNCEMENT : 03.02.2016 ORDER PER H.L.KARWA, VP THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF CIT(A), PANCHKULA DATED 30.01.2015 RELATING TO ASSESSMENT Y EAR 2010-11. 2. AT THE VERY OUTSET, LD. COUNSEL FOR THE ASSESSEE SHRI RUCHESH SINHA SUBMITTED THAT ASSESSEE WAS NOT PROVIDED ADEQUATE O PPORTUNITY OF BEING HEARD BY THE LD. CIT(A). FURTHER, IT IS SUBMITTED THAT IN TH IS CASE, THE ASSESSING OFFICER FRAMED THE ASSESSMENT ORDER U/S 143(3) OF THE ACT O N 31.3.2013. IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER MADE CERTAI N ADDITIONS / DISALLOWANCES. THE ASSESSEE CHALLENGED THE ORDER OF THE ASSESSING OFFICER BY WAY OF AN APPEAL BEFORE THE CIT(A). THE LD. CIT(A) DISMISSED THE AP PEAL OF THE ASSESSEE BY 2 PASSING AN EX-PARTE ORDER DATED 30.01.2015. THE REL EVANT OBSERVATIONS OF THE CIT(A) ARE AS UNDER:- 5.1 THERE WERE NO COMPLIANCE TO NOTICES WHICH WERE SER VED AT THE GIVEN ADDRESS AND ON THE GIVEN DATES AS ADJOURNMENT S WERE GRANTED ON APPELLANT'S REQUESTS. IN RESPONSE TO NOTICE DATED 1 5.09.2014, THE COUNSEL FOR THE APPELLANT SOUGHT ADJOURNMENT ON THE GROUND THAT CERTAIN INFORMATION WAS SOUGHT FROM THE AO WHICH HA S NOT BEEN RECEIVED FROM THE DEPARTMENT FOR THE PREPARATION OF THE CASE. THE ADJOURNMENT WAS SOUGHT TILL THE FIRST WEEK OF DECEM BER. THE ADJOURNMENT WAS GRANTED AND A NOTICE DATED 14.11.20 14 WAS ISSUED FOR 03.12.2014. IN RESPONSE TO THE NOTICE, THE COUNSEL FOR THE APPELLANT AGAIN SOUGHT ADJOURNMENT THAT THE REQUISITE DOCUMEN T IS STILL PENDING FROM THE AO AND THE CASE MAY BE ADJOURNED FOR FOUR WEEKS OF TIME. THEREAFTER, AGAIN A NOTICE DATED 02.12,2014 WAS ISS UED FOR PROVIDING A FINAL OPPORTUNITY OF BEING HEARD ON 24.12.2014. A C OPY OF THIS NOTICE WAS ALSO MARKED TO THE AO TO DISPOSE THE APPELLANT' S APPLICATION AT THE EARLIEST. THE COUNSEL FOR THE APPELLANT AGAIN REPLI ED VIDE HIS LETTER DATED 20.12.2014 FOR INSPECTION OF RECORD BEFORE TH E DATE OF HEARING FOR APPEAL ON 24.12.2014. THE AO RESPONDED VIDE HIS OFF ICE LETTER DATED 22.12.2014 PROVIDING AN OPPORTUNITY TO THE ASSESSEE ON 23.12.2014 FOR THE REQUISITE INSPECTION OF RECORD FOR A. Y. 2010-1 1 AND ALSO PROVIDED THE REQUISITE CERTIFIED COPIES OF ORDER SHEET ENTRI ES OF APPELLANT'S RECORDS FOR THE A.Y. 2010-11 TO THE APPELLANT THROU GH NOTICE SERVER. HOWEVER, NO COMPLIANCE ON 24.12.2014 WAS MADE BY TH E APPELLANT AGAIN, A NOTICE STATING FINAL OPPORTUNITY OF BEING HEARD WAS ISSUED ON 31.12.2014 FOR COMPLIANCE ON 15.01.2015. IT WAS ALS O INFORMED THAT IN CASE, THE APPELLANT DO NOT WISH TO ATTEND THE SAME MAY BE INFORMED, ON OR BEFORE 15.01.2015 AND NO FURTHER ADJOURNMENT WIL L BE GRANTED. HOWEVER, NEITHER THE APPELLANT OR HIS AUTHORIZED RE PRESENTATIVE COMPLIED TO THE NOTICE NOR ANY WRITTEN INFORMATION OR ANY SUBMISSION WAS FILED IN MY OFFICE 3. AFTER CONSIDERING THE ASSESSEES SUBMISSIONS, W E ARE OF THE CONSIDERED OPINION THAT LD. CIT(A) HAS NOT AFFORDED AN ADEQUAT E OPPORTUNITY OF BEING HEARD 3 TO THE ASSESSEE BEFORE DECIDING THE APPEAL ASSESSE E FILED BEFORE HIM. IN THE CASE OF RADHIKA CHARAN BANERJEE V SAMBALPUR MUNICIP ALITY, AIR 1979 ORI 69, WHEREIN THE HON'BLE ORISSA HIGH COURT HELD THAT A RIGHT OF APPEAL WHEREVER CONFERRED INCLUDES A RIGHT OF BEING AFFORDED AN OPPORTUNITY OF BEING HEARD, IRRESPECTIVE OF THE LANGUAGE CONFERRIN G SUCH RIGHT. THAT IS A PART AND PARCEL OF THE PRINCIPLE OF NATURAL JUSTICE. WHE RE AN AUTHORITY IS REQUIRED TO ACT IN A QUASI-JUDICIAL CAPACITY, IT IS IMPERATIVE TO GIVE THE APPELLANT AN ADEQUATE OPPORTUNITY OF BEING HEARD BEFORE DECIDING THE APPEAL. OPPORTUNITY OF HEARING DOES NOT ALWAYS NECESSARILY MEAN GIVING A P ERSONAL HEARING. A WRITTEN REPRESENTATION, IF COMPLETE AND ELABORATE IN ALL RE SPECTS FULLY EXPLAINING THE POINTS OF VIEW OF THE APPELLANT, WHEN ACCEPTED MAY, IN SOME CASES, AMOUNT TO AFFORDING OPPORTUNITY OF HEARING. WHAT PARTICULAR R ULE OF NATURAL JUSTICE SHOULD APPLY TO A GIVEN CASE MUST ALSO DEPEND TO A GREAT E XTENT ON THE FACTS AND CIRCUMSTANCES OF THAT CASE. IN THAT VIEW OF THE MATTER, IT WAS HELD THAT WHERE NO EFFECTIVE OPPORTUNITY OF BEING HEARD WAS GIVEN TO THE APPELLANT IN DISPOSING OF HIS APPEAL INSPITE OF HIS EXPRESS REQUEST THAT H IS COUNSEL SHOULD BE HEARD, THE ORDER MUST BE QUASHED. 4. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUM STANCES OF THE PRESENT CASE, AND ALSO THE SETTLED LEGAL POSITION, WE THINK IT APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER IN TOTO AND REMAND THE MATTER TO THE LEARNED CIT (APPEALS) WITH THE DIRECTION TO DECIDE THE APP EAL OF THE ASSESSEE AFRESH IN ACCORDANCE WITH LAW AFTER AFFORDING DUE A ND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LE ARNED CIT (APPEALS) IS DIRECTED TO DECIDE THE APPEAL OF THE ASSESSEE P REFERABLY WITHIN FOUR MONTHS FROM THE DATE OF RECEIPT OF COPY OF THIS ORD ER. 5. AT THIS STAGE, WE ARE NOT OFFERING ANY COMMENTS ON THE MERITS OF THE CASE. 4 6. FOR STATISTICAL PURPOSES, THE APPEAL OF THE ASSE SSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 03.02.2016 SD/- SD/- (RANO JAIN) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT DATED : 3 RD FEBRUARY, 2016 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR