SMT. JAISHRI RATHORE, Khandwa V. THE ITO, Khandwa

ITA 302/IND/2015

• Counselvise Citation: 30222714 RSA 2015
• Duration Of Justice: 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 06-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G S GAUTAM
• Assessee Lawyers: ASHOK SURJAN
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI B.C.MEENA, ACCOUNTANT MEMBER I.T.A.NO. 302/IND/2015 A.Y. : 2009-10. SMT. JAISHRI RATHORE, ITO, KHANDWA VS. KHANDWA APPELLANT RESPONDENT PAN NO. ALZPR0523P APPELLANTS BY : SHRI ASHOK SURJAN, C.A. RESPONDENT BY : SHRI G.S. GAUTAM, DR O R D E R PER D.T.GARASIA, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A)-II, INDORE, DATED 31.12.2014 FOR THE ASSE SSMENT YEAR 2009-10. DATE OF HEARING : 29 . 12 .201 5 DATE OF PRONOUNCEMENT : 29 . 12 .201 5 SMT.JAISHRI RATHORE, KHANDWA VS. ITO, KHANDWA I.T. A.NO. 302/IND/2015 A.Y.2009-10 2 2 2. THE FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE ASSESS EE :- 1. THE LD. CIT(A) HAS ERRED AND WAS NOT JUSTIFIED IN DECIDING THE APPEAL AND IN CONFIRMING THE ORDER OF THE LD. AO AS THE SAME IS NOT BASED ON FACTS ON RECORD AND IS CONTRARY TO THE PROVISIONS OF THIS AC T. 2. THE LD. CIT(A) HAS ERRED IN MAINTAINING THE PENALTY OF RS. 65,000/- LEVIED U/S 271(1)(C) OF THE ACT. 3. THE LD. CIT(A) HAS ERRED IN NOT FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE WHILE DECIDING THE APPEAL. 3. THE LD. AUTHORIZED REPRESENTATIVE CONTENDED THAT TH E NO PROPER OPPORTUNITY OF HEARING WAS GIVEN TO THE A SSESSEE AND THE AO AND LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE. THE LD. AUTHORIZED REPRESENTATIVE PRAYED THAT THE MATTER MAY BE RESTORED TO THE LD. CIT(A). 4. THE LD. DR DID NOT OBJECT TO RESTORATION. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE NECESSARY RECORDS. WE FIND FROM THE RECORDS THAT T HE APPEAL SMT.JAISHRI RATHORE, KHANDWA VS. ITO, KHANDWA I.T. A.NO. 302/IND/2015 A.Y.2009-10 3 3 WAS FIXED FOR HEARING ON 10.12.2014, WHICH WAS NOTI FIED BY THE REPRESENTATIVE OF THE ASSESSEE ON 25.11.2014, BUT O N THE DATE OF HEARING NEITHER PROCEEDINGS WAS ATTENDED NOR WRI TTEN COMMUNICATION WAS RECEIVED FOR ADJOURNMENT. THEREFO RE, THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE STATING THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING HIS APPE ALS FOR THREE YEARS. 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 OPPORTUNITY T O DEFEND HIMSELF. THIS PRINCIPLE IS SINE QUA NON OF EVERY CIVILIZED SOCIETY. THE RIGHT TO NOTICE, RIGHT TO P RESENT CASE AND EVIDENCE, RIGHT TO REBUT ADVERSE EVIDENCE, RIGHT TO CROSS EXAMINATION, RIGHT TO LEGAL REPRESENTATION , DISCLO SURE OF EVIDENCE TO PARTY, REPORT OF ENQUIRY TO BE SHOWN TO THE OTHER PARTY AND REASONED DECISIONS OR SPEAKING ORDERS. WE FIND THAT THE RIGHT OF HEARING IS DECIDED BY THE HON'BLE SUPR EME COURT IN THE CASE OF MANEKA GANDHI VS. UNION OF INDIA, WH EREIN HON'BLE SUPREME COURT HAS HELD THAT RULE OF FAIR HE ARING IS NECESSARY BEFORE PASSING ANY ORDER. WE FIND THAT IT IS PRE- SMT.JAISHRI RATHORE, KHANDWA VS. ITO, KHANDWA I.T. A.NO. 302/IND/2015 A.Y.2009-10 4 4 DECISION HEARING STANDARD OF NORM OF RULE OF AUDI ALTERM PARTEM. WE FIND THAT IN THIS INSTANT CASE, THE ASSESSEE WAS N OT GIVEN PROPER HEARING. THEREFORE, WE ARE OF THE VIEW THAT THE ASSESSEE MUST BE GIVEN ONE MORE OPPORTUNITY OF HEAR ING AND TO REPRESENT HIS CASE. THEREFORE, WE ALLOW THIS APP EAL ON THE CONDITION THAT THE ASSESSEE MUST BE PRESENT ON THE DATE FIXED FOR HEARING. THE ASSESSEE IS DIRECTED TO REMAIN PRE SENT BEFORE THE LD. CIT(A) WITHIN 2 MONTHS AFTER THE RECEIPT OF THIS ORDER. THE LD. CIT(A) SHOULD DECIDE THE APPEALS AFTER GIVI NG DUE OPPORTUNITY OF HEARING TO THE ASSESSEE AS PER LAW. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 29 TH DECEMBER, 2015. SD/- (B.C.MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 29 TH DECEMBER, 2015. SMT.JAISHRI RATHORE, KHANDWA VS. ITO, KHANDWA I.T. A.NO. 302/IND/2015 A.Y.2009-10 5 5 CPU*