Shri Anil Takalkar, Dewas V. The ITO, Dewas

ITA 278/IND/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2213 (ITAT-INDORE)
• Duration Of Justice: 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 13-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHMD JAVED
• Assessee Lawyers: S S DESHPANDE
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

ANIL TAKALKAR VS. ITO, DEWAS/ I.T.A. NO.278/IND/201 7/A.Y.:09-10 PAGE 1 OF 3 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE . . , . . , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER SHRI ANIL TAKALKAR, 145-A, SILVER OAKS COLONY, ANNAPURNA ROAD, INDORE (MP) V. ITO, DEWAS / APPELLANT / RESPONDENT . . ./ PAN:ACAPT9132F / APPELLANT BY SHRI S.S. DESHPANDE, CA / RESPONDENT BY SHRI MOHMD. JAVED, SR. (DR) / DATE OF HEARING 24.05.2017 / DATE OF PRONOUNCEMENT 26.05.2017 / O R D E R PER O.P.MEENA, ACCOUNTANT MEMBER: 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-, UJJA IN, [IN SHORT REFERRED TO AS THE CIT (A)] DATED 06.01.2017 FOR A SSESSMENT YEAR 2009-10 ON THE SOLE GROUNDS OF APPEAL AS UNDER:- THAT THE LD. CIT(A) HAS ERRED IN SUSTAINING THE ADDITI ON OF RS. 3,07,712/- FOR DISALLOWANCE OF EXPENDITURE. 2. AT THE OUTSET, THE LD. AR SUBMITTED THAT NO OPPORTU NITY OF HEARING WAS OFFERED TO THE ASSESSEE HENCE, THE LD. CIT(A) WAS NOT . . ./ I.T.A. NO.278/IND/2017 &(( / ASSESSMENT YEAR: 2009-10 ANIL TAKALKAR VS. ITO, DEWAS/ I.T.A. NO.278/IND/201 7/A.Y.:09-10 PAGE 2 OF 3 JUSTIFIED IN REJECTING THE APPEAL OF THE ASSESSEE E X PARTE THEREFORE, IT WAS PRAYED THAT THE APPEAL BE RESTORED TO THE FI LE OF LD. CIT(A) WITH A DIRECTION OF PROPER OPPORTUNITY OF BEING HEA RD MAY BE ALLOWED TO THE ASSESSEE. ON THE OTHER HAND, THE LD. SR. DR HAS NO OBJECTION IF THE MATTER IS RESTORED TO THE FILE OF THE LD. CIT(A). 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND FIND THAT T HE LD. CIT(A) HAS NOT ALLOWED PROPER OPPORTUNITY OF BEING HEARD. THE PRINCIPLE OF AUDI-ALTEREM PARTEM IS THE BASIC CONCEPT OF NATURAL JUSTICE. THE EXPRESSION AUDI-ALTEREM PARTEM IMPLIES THAT A PERSON MUST BE GIVEN AN OPPORTUNITY TO DEFEND HIMSE LF, 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 LEGA L REPRESENTATION, DISCLOSURE OF EVIDENCE TO PARTIES, REPORT OF ENQUIR Y TO BE SHOWN TO THE OTHER PARTY AND REASON OR DECISION OR SPEAKING ORDER IS IMPERATIVE REQUIREMENT OF THE LAW. THE VIEW IS FOUN D SUPPORT FROM THE DECISION OF THE HON'BLE SUPREME COURT IN T HE CASE OF MANEKA GANDHI VS. UNION OF INDIA WHEREIN IT WAS HEL D THAT RULES OF FAIR HEARING IS NECESSARY BEFORE PASSING ANY ORD ER. WE FIND THAT IN THE INSTANT CASE, THE ASSESSEE WAS NOT GIVEN PRO PER HEARING AND THE APPEALS WEAR DECIDED EX PARTE. THEREFORE, W E ARE OF THE VIEW THAT THE ASSESSEE MUST BE GIVEN ONE MORE OPPOR TUNITY OF BEING HEARD AND TO REPRESENT HIS CASE. THEREFORE, I N EXERCISE OF POWER CONFERRED UNDER RULE 28 OF TRIBUNAL RULES, WE RESTORE THIS APPEAL TO THE FILE OF LD. CIT(A) FOR ALLOWING PROPE R OPPORTUNITY OF BEING HEARD IN ACCORDANCE WITH LAW. NEVERTHELESS, T O MENTION THAT THE ASSESSEE WILL COOPERATE IN APPEAL PROCEEDI NG AND FURNISH ANIL TAKALKAR VS. ITO, DEWAS/ I.T.A. NO.278/IND/201 7/A.Y.:09-10 PAGE 3 OF 3 NECESSARY EVIDENCE FOR WHICH HE WANTS TO RELY. ACCO RDINGLY, THE ISSUE SET ASIDE OF THE FILE OF THE CIT(A). 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSE. 5. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 26.05.2017 SD/- (C.M. GARG) SD/- (O.P.MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 26.05.2017 SB*