Ashok Kumar Aggarwal, Delhi V. ITO, New Delhi

ITA 3036/DEL/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7580 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 01-12-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 15-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B KAUR
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH. T.S. KA POO R, ACCOUNTANT MEMBER I.T.A .NO. - 3036 /DEL/201 3 (ASSESSMENT YEAR - 2 00 9 - 1 0 ) ASHOK KUMAR AGGARWAL, 58, ASHOK PARK, MAIN ROHTAK ROAD, RAMPURA, DELHI - 110035. P AN - AHLPA2728B (APPELLANT) VS ITO, WARD - 25(2 ), NEW DELHI. (RESPONDENT) APPELLANT BY SH. SA CHIN JAIN , CA RESPONDENT BY B. KAUR, SR. DR ORDER PER DIVA SINGH, JM TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 19.03 .201 3 OF THE CIT(A) - XX IV , NEW DELHI PERTAINING TO 2009 - 10 ASSESSMENT YEAR. ALTHOUGH VARIOUS GROUNDS ON MERIT HA VE BEEN RAISED BY THE ASSESSEE IN THE PRESENT APPEAL HOWEVER THE SOLE ISSUE AGITATED BY THE ASSESSEE AT THE TIME OF HEARING WAS THAT THE IMPUGNED ORDER WAS P A S SED WITHOUT HEARING THE ASSESSEE. THE SPECIFIC GROUND QUA THE SAID ISSUE IS GROUND NO. - 1 WHICH READ S AS UNDER: - 1. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL BY PRESUMING THAT EITHER THE APPELLANT HAS NOTHING TO SAY IN HIS DEFENCE OR HE IS NOT INTERESTED IN PURSUING THE APPEAL. DUE TO SOME CONFUSION BETWEEN ASSESSEE AND THE AR THE APPEAL COULD NOT BE ATTENDED. IT IS REQUESTED TO RESTORE THE MATTER TO THE LD. CIT(A) FOR DECIDING THE CASE AFRESH. 2. REFERRING TO THE MATERIAL AVAILABLE ON RECORD, LD. AR FAIRLY CONCEDED THAT NOTICES HAD BEEN RECEIVED BY THE ASSESSEE. IT WAS SUBMITTED THAT ON THE THREE SPECIFIC INSTANCES MENTIONED BY THE CIT(A) THE ASSESSEE HAD CONVEYED INSTRUCTIONS TO HIS LD. AR TO PRESENT HIS CASE. HOWEVER SUBSEQUENTLY ON THE RECEIPT OF THE 2 I.T.A .NO. - 3036 /DEL/201 3 IMPUGNED ORDER IT WAS LEARNT THAT THE LD. AR HAS NOT APPEARED. THE SITUATION IT WAS SUBMITTED MAY HAVE ARISEN DUE TO PROBABLY DIF FERENCE OF OPINION ON THE ISSUE OF FEES . IN THESE CIRCUMSTANCES THE DISMISSAL OF ASSESSEE S APPEAL FOR WANT OF REPRESENTATION IT WAS SUBMITTED IS TOO HARSH. A PRAYER WAS MADE THAT THE APPEAL MAY BE RESTORED TO THE CIT(A) FOR GRANT OF AN OPPORTUNITY OF BE ING HEARD. 2.1. LD. SR. DR HAD NO OBJ ECTION IN CASE THE SAID PRAYER OF THE ASSESSEE I S ACCEPTED. 3 . THE RECORD SHOWS THAT THE IMPUGNED ORDER ON ACCOUNT OF ASSESSEE S NON - APPEARANCE HAS BEEN PASSED HOLDING THAT THE ASSESSEE HAS NOTHING TO STATE. THE LAW MANDATES THAT THE LD. CIT DR WHILE DECIDING THE APPEAL IS REQUIRED TO SET OUT THE SPECIFIC POINTS ON WHICH THE DETERMINATION IS REQUIRED AND PASS A SPEAKING ORDER SETTING OUT HIS REASONS FOR THE CONCLUSION DRAWN. THIS EXERCISE IS FOUND TO BE MISSING IN TH E IMPUGNED ORDER. THESE REQUIREMENTS ARE SET OUT IN SECTION 250(6) OF THE INCOME TAX ACT, 1961 AND ARE REPRODUCED FOR READY - REFERENCE : - 250. (1) . (2) (3) (4) . (5) . (6) THE ORDER OF THE COMMISSIONER (APPEALS) DISPOSING OF THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASON FOR THE DECISION. 3. 1. IN THE LIGHT OF THE ABOVE PECULIAR FACTS, WHERE THE IMPUGNED ORDER DOES NOT MEET THE REQUIREMENTS OF THE ACT , WE SET ASIDE THE SAME. CONSIDERING THE ARGUMENTS ADVANCED IT IS SEEN TH AT THE RECEIPT OF NOTICE HAS NOT BEEN DENIED BY THE ASSESSEE. THE LD. AR, SH. SACHIN JAIN PRESENT AT THE TIME OF HEARING SUBMITTED THAT ANOTHER OPPORTUNITY MAY BE GRANTED AND THE ASSESSEE SHALL ENSURE THAT HE IS REPRESENTED. RIGHT TO BE HEARD IS AN IMPORTANT RIGHT TO WHICH A PARTY WHO IS FACED WITH AN ADVERSE VIEW IS ENTITLED TO AUDI ALTERAM PARTEM IS ONE OF THE MOST FA MOUS AND CELEBRATED RULE OF NATURAL JUSTICE. THE PRINCIPLES OF NATURAL JUSTICE ARE 3 I.T.A .NO. - 3036 /DEL/201 3 THOSE WHICH HAVE BEEN LAID OUT BY THE COURTS AS BEING THE MINIMUM PROTECTION OF THE RIGHTS OF AN INDIVIDUAL AGAINST THE ARBITRARY PROCEDURE THAT MAY BE ADOPTED BY A JUDICIA L, QUASI - JUDICIAL AND ADMINISTRATIVE AUTHORITY WHILE MAKING AN ORDER AFFECTING THOSE RIGHTS. A CAREFUL PERUSAL OF THE CONSISTENT JUDGEMENTS OF THE APEX COURT WOULD SHOW THAT IT HAS CONSISTENTLY BEEN HELD THAT THE RULES OF NATURAL JUSTICE ARE NOT EMBODIED RULES AND THE SAID PHRASE IS NOT AND CANNOT BE CAPABLE OF A PRECISE DEFINITION. THE UNDERLYING PRINCIPLE OF NATURAL JUSTICE EVOLVED UNDER THE COMMON LAW IS TO CHECK ARBITRARY EXERCISE OF POWER BY THE STATE OR ITS FUNCTIONARIES. ACCORDINGLY, THE PRINCIPLE BY ITS VERY NATURE IMPLIES THE DUTY TO ACT FAIRLY I.E. FAIR PLAY IN ACTION MUST BE EVIDENT AT EVERY STAGE. FAIR PLAY DEMANDS THAT NOBODY SHALL BE CONDEMNED UNHEARD. IN THE CELEBRATED JUDGEMENT OF THE APEX COURT IN THE CASE OF A.K.KRAIPAK VS - UNION OF IN DIA (1969) 2 SCC 262, IT IS OBSERVED THAT THE AIM OF RULES OF NATURAL JUSTICE IS TO SECURE JUSTICE OR TO PUT IT NEGATIVELY TO PREVENT MISCARRIAGE OF JUSTICE. THE SAID RULES ARE MEANS TO AN END AND NOT AN END IN THEMSELVES AND THOUGH IT IS NOT POSSIBLE TO MAKE AN EXHAUSTIVE CATALOGUE OF SUCH RULES HOWEVER IT CAN BE READILY SAID THAT THERE ARE TWO BASIC MAXIMS OF NATURAL JUSTICE NAMELY AUDI ALTERAM PARTEM AND NEMO JUDEX IN RE SUA . IN THE PRESENT FACTS OF THE CASE WE ARE CONCERNED WITH THE MAXIM AUDI A LTERM PARTEM WHICH AGAIN MAY HAVE MANY FACETS TWO OF THEM (A) NOTICE OF THE CASE TO BE MET; AND (B) OPPORTUNITY TO EXPLAIN. THEIR LORDSHIPS HAVE CAUTIONED THAT THESE RULES CANNOT BE SACRIFICED AT THE ALTAR OF THE ADMINISTRATIVE CONVENIENCE OR CELEBRITY. THE ASSESSEE HAS RAISED GROUND NO. - 1 IN REGARD TO THE OPPORTUNITY OF BEING HEARD AGITATED BEFORE US AND CONSIDERING THE SUBMISSIONS OF EITHER SIDE WHERE IN THE SOLE ISSUE AGITATED BEFORE US IS PERTAINING TO GRANTING OF OPPORTUNITY OF BEING HEARD WHICH ADM ITTEDLY HAS NOT BEEN MADE AVAILABLE TO THE ASSESSEE WE ARE INCLINED TO ACCEPT THE PRAYER OF THE ASSESSEE ON A CAREFUL CONSIDERATION OF THE LEGAL POSITION THEREON. ACCORDINGLY THE GROUND NO. - 1 RAISED BY THE ASSESSEE IS ALLOWED AND THE REMAINING GROUNDS ARE RESTORED BACK TO THE FILE OF THE CIT (A) WITH THE 4 I.T.A .NO. - 3036 /DEL/201 3 DIRECTION TO DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONAB LE OPPORTUNITY OF BEING HEARD. WHILE SO DIRECTING WE HOPE THAT THE OPPORTUNITY SO GRANTED IS NOT ABUSED . 4 . IN THE RE SULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 1 2 T H OF DECEMBER 2014. S D / - S D / - ( T.S.KAPOOR ) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 1 2 / 1 2 /2014 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI