SHRI NEERAJ PAL, Vidisha V. THE ITO, Vidisha

ITA 293/IND/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5933 (ITAT-INDORE)
• Duration Of Justice: 8 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 05-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: N D PATWA
• Keywords: Principle of natural justice; Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE (SINGLE MEMBER CASE) BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER I.T.A.NO. 293/IND/2015 A.Y. : 2009-10 SHRI NEERAJ PAL, ITO, VIDISHA VS. VIDISHA APPELLANT RESPONDENT PAN NO. ANPPP8598Q A PPELLANT S BY : SHRI ASHISH GOYAL AND SHRI N. D. PATWA, ADV. RESPONDENT BY : SHRI R.A. VERMA, DR O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A)-II, BHOPAL, DATED 20.08.2014 FOR THE ASSE SSMENT YEAR 2009-10. 2. THIS APPEAL IS TIME BARRED BY 172 DAYS. TO THIS EFF ECT THE ASSESSEE FILED AN AFFIDAVIT STATING ON OATH THA T SINCE THE DATE OF HEARING : 15 . 12 . 201 5 . DATE OF PRONOUNCEMENT : 07 . 01 .201 6 SHRI NEERAJ PAL, VIDISHA VS. ITO, VIDISHA I.T.A.N O. 293/IND/2015 A.Y. 2009-10 2 2 ASSESSEE CHANGED THE COUNSEL BECAUSE HE WAS NOT PRE SENTING THE CASE PROPERLY. THEREFORE, THE APPEAL COULD NOT BE FILED AND THE DELAY WAS CAUSED DUE TO MISCOMMUNICATION FROM P REVIOUS COUNSEL. 3. I HAVE PERUSED THE CONTENTS OF THE AFFIDAVIT AND FO UND THAT THE DELAY IS DUE TO REASONABLE CAUSE AND I CON DONE THE DELAY OF 172 DAYS. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S ENGAGED IN THE BUSINESS OF WHOLESALE TRADING IN GRA INS CARRIED IN THE NAME AND STYLE OF PROPRIETORSHIP FIRM M/S. P AL ENTERPRISES. RETURN DECLARING INCOME OF RS. 2,17,07 0/- SHOWING GROSS PROFIT AND NET PROFIT RATIO OF 3.18 % AND 0.34 % RESPECTIVELY WERE FILED ON 30.09.2009. THE AO HAS M ADE ABOVE ADDITIONS TO ASSESSEES DECLARED INCOME AND HAS ASS ESSED THE INCOME AT RS. 13,83,747/- IN HIS HANDS. 5. THE LD. AUTHORIZED REPRESENTATIVE CONTENDED THAT TH E ASSESSEE WAS NOT GIVEN PROPER OPPORTUNITY OF HEARIN G AND THE CASE WAS DECIDED IN HIS ABSENCE AND NONE WAS APPEAR ED BEFORE THE CIT(A) AND THE CASE WAS DECIDED BEHIND H IS BACK. SHRI NEERAJ PAL, VIDISHA VS. ITO, VIDISHA I.T.A.N O. 293/IND/2015 A.Y. 2009-10 3 3 THE LD. AUTHORIZED REPRESENTATIVE FURTHER CONTENDED THAT THE ASSESSEE HAS ALSO CHANGED HIS COUNSEL. THE LD. COUN SEL FOR THE ASSESSEE FURTHER CONTENDED THAT ONE OPPORTUNITY MAY KINDLY BE GIVEN TO THE ASSESSEE TO REPRESENT HIS CASE PROP ERLY. 6. THE LD. DR DID NOT OBJECT TO RESTORATION OF APPEAL. 7. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE NECESSARY RECORDS. I FIND THAT THE ORDER HAS BEEN PASSED BY THE LD. CIT(A) BEHIND THE BACK OF THE ASSESSEE AND THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE. TH E PRINCIPLE OF AUDI ALTERAM PARTEM IS THE BASIC CONCEPT OF NATURAL JUSTICE. THE EXPRESSION AUDI ALTERAM PARTEM IMPLIES THAT A PERSON MUST BE GIVEN OPPORTUNITY TO DEFEND HIMSELF. THIS PRINCIPLE IS SINE QUA NON OF EVERY CIVILIZED SOCIETY. THE RIGHT TO NOTICE, RIGHT TO PRESENT CASE AND EVIDENCE, RIGH T TO REBUT ADVERSE EVIDENCE, RIGHT TO CROSS EXAMINATION, RIGHT TO LEGAL REPRESENTATION , DISCLOSURE OF EVIDENCE TO PARTY, R EPORT OF ENQUIRY TO BE SHOWN TO THE OTHER PARTY AND REASONED DECISIONS OR SPEAKING ORDERS. WE FIND THAT THE RIGHT OF HEARI NG IS DECIDED BY THE HON'BLE SUPREME COURT IN THE CASE OF MANEKA GANDHI SHRI NEERAJ PAL, VIDISHA VS. ITO, VIDISHA I.T.A.N O. 293/IND/2015 A.Y. 2009-10 4 4 VS. UNION OF INDIA, WHEREIN HON'BLE SUPREME COURT H AS HELD THAT RULE OF FAIR HEARING IS NECESSARY BEFORE PASSI NG ANY ORDER. I FIND THAT IT IS PRE-DECISION HEARING STANDARD OF NORM OF RULE OF AUDI ALTERM PARTEM. I FIND THAT IN THIS INSTANT CASE, THE ASSESSEE WAS NOT GIVEN PROPER HEARING. THE ASSESSEE HAS ALSO CHANGED HIS COUNSEL BECAUSE THE EARLIER COUNSEL WAS NOT REPRESENTING THE CASE PROPERLY. THEREFORE, I AM OF THE VIEW THAT THE ASSESSEE MUST BE GIVEN ONE MORE OPPORTUNIT Y OF HEARING AND TO REPRESENT HIS CASE. THEREFORE, I ALL OW THIS APPEAL ON THE CONDITION THAT THE ASSESSEE MUST BE P RESENT ON THE DATE FIXED FOR HEARING. THE ASSESSEE IS DIRECTE D TO REMAIN PRESENT BEFORE THE LD. CIT(A) WITHIN 2 MONTHS AFTER THE RECEIPT OF THIS ORDER. THE LD. CIT(A) SHOULD DECIDE THE APP EAL AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE A S PER LAW. SHRI NEERAJ PAL, VIDISHA VS. ITO, VIDISHA I.T.A.N O. 293/IND/2015 A.Y. 2009-10 5 5 8. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICA L PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OP EN COURT ON 7 TH JANUARY, 2016, SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 7 TH JANUARY, 2016. CPU*