Sh. Raman Kumar Kapur, Delhi V. ACIT, New Delhi

ITA 3261/DEL/2013

• Counselvise Citation: 326120114 RSA 2013
• Duration Of Justice: 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2008-2009
• Appeal Filed On: 23-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEEHAR RANJAN
• Keywords: Search and seizure; Opportunity of being heard; Principle of natural justice; Cost of acquisition; Non compliance

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SHRI T.S.KAPOOR, ACCOUNTANT MEMBER I.T.A .NO.-3261/DEL/2013 (ASSESSMENT YEAR-2008-09) RAMAN KUMAR KAPUR, PROP. RAMTEX OVERSEAS CORP., 9, RAJ NIWAS MARG, DELHI PAN-AAJPK1989M (APPELLANT) VS ACIT, CIRCLE-20(1), NEW DELHI. (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SH. NEEHAR RANJAN PANDEY, SR. DR ORDER PER DIVA SINGH, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 19.12.2012 OF CIT(A)-XXII, NEW DELHI PERTAINING TO 2008-09 ASS ESSMENT YEAR WHEREIN VARIOUS GROUNDS HAVE BEEN RAISED BY THE ASSESSEE HO WEVER THE HEARING WAS CONFINED TO GROUNDS NO-1 & 2 WHICH READ AS UNDER :- 1. BECAUSE THE ACTION IS BEING CHALLENGED ON FACTS AND LAW SINCE HAVING DISMISSED SUMMARILY, IN VIOLATION TO THE PROVISIONS OF SECTION 250 OF THE ACT & THEREIN NEITHER GRANTING THE OPPORTUNITY OF HEARI NG NOR THE DECISION ON MERITS, THUS DEFEATING THE CAUSE OF JUSTICE. 2. BECAUSE THE ACTION IS UNDER CHALLENGE ON FACTS A ND LAW FOR UPHOLDING THE ASSESSMENT AT AN AMOUNT OF RS.1,23,23,870/- WHI CH IS A PATENT BREACH TO THE PRINCIPLES OF NATURAL JUSTICE WHEREAS THE PRAYE R FOR ADJOURNMENT ON THE DATE OF HEARING HAS BEEN DULY RECEIVED IN DAK OF LD . CIT(A). 2. NO ONE WAS PRESENT AT THE TIME OF HEARING ON BEH ALF OF THE ASSESSEE HOWEVER CONSIDERING THE MATERIAL AVAILABLE ON RECOR D IN THE ABOVE MENTIONED I.T.A .NO.-3261/DEL/2013 2 GROUNDS IT WAS CONSIDERED APPROPRIATE TO PROCEED WI TH THE HEARING EX-PARTE QUA THE ASSESSEE APPELLANT ON MERIT. 3. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSE SSEE IS STATED TO BE ENGAGED IN THE BUSINESS OF EXPORT OF HOME FABRICS AND SOLD HOUSE PROPERTY AT GARDEN ESTATE FOR A CONSIDERATION OF 2,26,00,000/-. INCOM E OF RS.37,33,520/- WAS RETURNED WHICH WAS PROCESSED U/S 143(1)(A) AND THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS. CONSEQUENTLY NOTICE U/S 143(2 ) WAS ISSUED AND SERVED UPON THE ASSESSEE AND IN COMPLIANCE THERETO AND SUB SEQUENT NOTICE THE ASSESSEE WAS REPRESENTED THROUGH AR. 3.1. THE AO REQUIRED THE ASSESSEE TO EXPLAIN THE IM PROVEMENT COST QUA THE PROPERTY SOLD WHICH WAS CLAIMED BY THE ASSESSEE TO THE EXTENT OF RS.53,98,500/- AND ALSO TRANSFER EXPENSES OF RS.2,00,000/-. SINCE THE ASSESSEE COULD NOT PRODUCE DOCUMENTARY EVIDENCE, THE AO CONCLUDED THAT IMPROVEMENT COST EXPENSES HAD BEEN CLAIMED JUST TO REDUCE TAXABLE I NCOME FROM INCOME. CONSEQUENTLY ADDITION OF RS.55,98,500/- WAS MADE IN THE HANDS OF THE ASSESSEE. 3.2. APART FROM THIS THE AO FURTHER QUA THE SALE OF HOUSE PINNACLE ON 20.09.2007 FOR RS.1,56,28,246/- MADE ADDITION OF RS .25,30,650/- DISALLOWING THE CLAIM MADE WHILE CALCULATING CAPITAL GAIN WHERE IN THE INTEREST PAID ON HOUSE LOAN WAS CLAIMED AS COST OF ACQUISITION. HEREIN AL SO HE FOUND THAT THE DOCUMENTARY EVIDENCE QUA THE CLAIM OF TRANSFER EXPE NSES COULD NOT BE SUBSTANTIATED. APART FROM THAT CERTAIN DISALLOWANC E ON ACCOUNT OF VEHICLE EXPENSES, TELEPHONE EXPENSES AND DIWALI EXPENSES ET C WAS MADE. 4. AGGRIEVED BY THIS, THE ASSESSEE WENT IN APPEAL B EFORE THE CIT(A). THE CIT(A) TAKING INTO CONSIDERATION THE OPPORTUNITY PR OVIDED TO THE ASSESSEE IN PARA 8 TO 8.15 CONFIRMED THE ACTION OF THE AO. THE RELEVANT FINDING IS REPRODUCED FOR READY REFERENCE:- I.T.A .NO.-3261/DEL/2013 3 8. DECISION 8.1 NOTICE DATED 16.08,11 WAS ISSUED TO THE ASSESSE E FIXING DATE FOR 30.08.11 AT THE ADDRESS SPECIFIED IN THE FORM NO.35 AS THE ADDRESS TO WHICH NOTICES MAY BE SENT TO THE APPELLANT. A LETTER WAS FILED ON 30.08.11 BY SH. BHARDWAJ TAJENDER, CA, REQUESTING FOR ADJOURNMENT O N WHICH THE CASE WAS ADJOURNED TO 15.09.11. A LETTER DATED 16.09.11 WAS FILED REQUESTING THAT THE DATE BE ADJOURNED TO THE MID OF OCTOBER 2011. THE C ASE WAS ADJOURNED TO 05.10.11 ON THIS APPLICATION, ON WHICH THERE WAS NO COMPLIAN CE. SUBSEQUENTLY ANOTHER NOTICE DATED 14.10,11 WAS ISSU ED, REQUIRING COMPLIANCE ON 25.10.11. AS NO COMPLIANCE WAS MADE ON 25.10.11, ANOTHER NOTICE WAS ISSUED ON 25.10.11, ON THE ADDRESS SPECI FIED FOR CORRESPONDENCE IN FORM NO. 35, FOR COMPLIANCE ON 11.11.11. NO COMPLIANCE WAS MADE AGAIN ON THIS DATE ALSO. ANOTHER NOTICE DATED 13.12 .11 WAS SENT FOR COMPLIANCE ON 22.12.11. IN RESPONSE TO THIS NOTICE, NOBODY ATTENDED NOR ANY SUBMISSIONS WERE FI LED, BUT A LETTER DATED 19.12.11 WAS RECEIVED IN DA K ON 20.12.11 IN WHICH THE ASSESSEE HAS CLAIMED AS UNDER :- 'IN RESPONSE TO THE NOTICES ISSUED FOR FIXING THE D ATE OF HEARING ON 22.12.11 IT IS SUBMITTED THAT THE UNDERSIGNED IS BUSY IN COMPLE TING TIME BARRING CASES FOR THE A,Y, 2009-10. HENCE YOU ARE REQUESTED TO ADJOURN THE DATE AND ALL OW THE DATE IN THE THIRD WEEK OF JANUARY 2012.' 8.2 IN VIEW OF THE SPECIFIC REQUEST FOR THE CASE TO BE FIXED IN THE THIRD WEEK OF JANUARY 2012, A NOTICE DATED 27.12.11 WAS I SSUED FROM THIS OFFICE FIXING THE DATE OF HEARING AS 20.01.2012. THIS NOTI CE ALSO MENTIONED 'FINAL NOTICE' ON TOP OF THE NOTICE. HOWEVER, DESPITE THE FACT THAT THE ASSESSEE HAD SPECIFICALLY REQUESTED FOR THE CASE TO BE FIXED FOR THE THIRD WEEK OF JANUARY 2012, AND IT WAS DONE SO BY THIS OFFICE, STILL NO R EPRESENTATION WAS MADE NOR ANY WRITTEN SUBMISSIONS WERE FILED ON THAT DATE ON THE MERITS OF THE CASE AND A LETTER WAS FILED STATING THAT ;- 'THIS IS TO INFORM YOU THAT PLEASE KIND GIVE THE AD JOURNMENT FOR TODAY AND GIVE THE NEXT DATE IN A WEEK OF FEB.' 8.3. ON THIS APPLICATION, THE CASE WAS ADJOURNED TO 15.02.12, MEANWHILE THERE WAS A CHANGE IN THE INCUMBENT IN THIS OFFICE AND THE UNDERSIGNED JOINED THE OFFICE. A NOTICE DATED 02.02.12 WAS ISSU ED FIXING THE DATE FOR HEARING ON 13.02.12, IN VIEW OF THE FACT THAT THE A SSESSEE HAD REQUESTED FOR THE HEARING TO BE FIXED IN FEBRUARY. NO COMPLIANCE WAS MADE ON 13.02.12, BUT ON 15.02.12 , (THE DATE FIXED BY MY PREDECESSOR), SH. BHARAT SEHG AL, POWER OF ATTORNEY HOLDER APPEARED AND REQUESTED FOR ADJOURNMENT TO THE FIRST WEEK OF MARCH AND ALSO FILED A LETTER DATED 1 5.02.12 SIGNED BY SH. BHARDWAJ TAJENDER, CA IN WHICH IT WAS SPECIFICALLY STATED AS UNDER :- 'YOU ARE REQUESTED TO ADJOURN THE DATE AND ALLOW TH E DATE TO SOME OTHER DAY CONVENIENTLY IN THE 1ST WEEK OF MARCH, 12 .' 8.4 ON THE SPECIFIC REQUEST OF THE POWER OF ATTORN EY HOLDER SH. BHARAT SEHGAL AND SH. BHARDWAJ TAJENDER, CA (THOUGH HIS LE TTER DATED 15.02.12) THE CASE WAS ADJOURNED TO 06.03.12. HOWEVER, ON TH IS DATE, THERE WAS NO I.T.A .NO.-3261/DEL/2013 4 COMPLIANCE AT ALL. 8.5 SUBSEQUENTLY ON 20.07.12 A NOTICE WAS ISSUED FO R COMPLIANCE ON 01.08.12, IN RESPONSE TO WHICH SH. BHARAT SEHGAL AT TENDED AND SUBMITTED A LETTER IN WHICH IT WAS STATED AS UNDER :- 'WITH REFERENCE TO YOUR NOTICE I WANT TO STATE THAT THE ACCOUNTANT OF THE ASSESSEE IS NOT AVAILABLE FOR FURNISH REQUIRED DETAILS SO I REQUESTED KINDLY ADJOURN THE DATE TO THE THIRD WEEK OF AUGUST 2012.' 8.6 ONCE AGAIN, ON THE SPECIFIC REQUEST OF THE POWE R OF ATTORNEY HOLDER, THE CASE WAS ADJOURNED AS REQUESTED TO THE THIRD WE EK OF AUGUST AND WAS FIXED FOR 16.08,12. HOWEVER, ONCE AGAIN, DESPITE TH E CASE BEING FIXED IN THE THIRD WEEK OF AUGUST ON THE SPECIFIC REQUEST, THERE WAS NO COMPLIANCE ON 16.08.12 AND NOBODY EVEN ATTENDED FOR SEEKING ADJOU RNMENT 8.7 SUBSEQUENTLY NOTICE DATED 18.09.12 WAS ISSUED F IXING DATE OF HEARING FOR 26.09.12. IN RESPONSE TO THIS NOTICE A LETTER D ATED 24.09.12, SIGNED BY SH. BHARDWAJ TAJENDER WAS FILED IN DAK ON 25.09.12 AS P ER WHICH FURTHER ADJOURNMENTS WERE SOUGHT CLAIMING THAT THE LD. COUN SEL IS BUSY IN FILING THE TIME BARRING RETURNS. THIS LETTER HAS STATED AS UND ER :- 'IN RESPONSE TO YOUR NOTICE FOR FIXING THE DATE OF HEARING ON 26.09.2012, IT IS SUBMITTED THAT THE UNDERSIGNED IS BUSY IN FILLING THE TIME BARRING RETURN TILL 30.09.2012 A/Y 2012-13. HE NCE YOU ARE REQUESTED TO ADJOURN THE DATE TO SOME OTHER DAY PRE FERABLY IN THE MONTH OF NOVEMBER 2012.' 8.8. PERUSAL OF THE ABOVE LETTER SHOWS THAT IT HAS BEEN CLAIMED THAT THE LD. COUNSEL WAS BUSY TILL 30.09.2012 IN FILING THE RETU RNS AND IF THIS WAS A GENUINE REASON TO SEEK ADJOURNMENTS THEN THE ADJOUR NMENT OF THE CASE SHOULD HAVE BEEN SOUGHT FOR THE MONTH OF OCTOBER. H OWEVER, THE ADJOURNMENT WAS SOUGHT NOT FOR OCTOBER BUT FOR NOVE MBER. WITH A VIEW TO GIVE SOME MORE TIME FOR PREPARATION OF THE CASE, TH E NOTICE WAS ISSUED ON 30.11.12 AND THE DATE FOR COMPLIANCE WAS FIXED FOR 14.12.12. NO COMPLIANCE WAS MADE TO THE NOTICE DATED 30.11.12 AND NEITHER A NY BODY ATTENDED NOR ANY WRITTEN SUBMISSIONS ETC. WERE FILED ON 14.12.12 . 8.9 SUBSEQUENTLY ON 18.12.12 A LETTER, SIGNED BY SH . BHARDWAJ TAJENDER, CA, WAS RECEIVED IN DAK ON 18 12.12. IT HAS BEEN ST ATED IN THIS LETTER AS UNDER :- 'IN RESPONSE TO THE DATE FIXED FOR HEARING ON 14,12 .2012 IT IS SUBMITTED THAT OUR CLIENT IS OUT OF INDIA AND IN HI S ABSENCE DOCUMENTS CANNOT BE SIGNED. YOU ARE REQUESTED KINDL Y TO ADJOURN THE DATE TO THE 2 ND WEEK OF FEB. 2013.' 8.10 THUS IT IS SEEN THAT EVEN AFTER SO MANY ADJOUR NMENTS AND NON COMPLIANCES, THE APPELLANT IS STILL ASKING FOR FURT HER ADJOURNMENT. THIS IS DESPITE THE FACT THAT THE FIRST NOTICE IN THE CASE HAD BEEN ISSUED AS LONG BACK AS ON 16.08.2011 AND THE APPELLANT HAS HELD MUCH MO RE THAN FAIR NUMBER OF OPPORTUNITIES FOR PREPARING AND PRESENTING IN HIS C ASE. HOWEVER, AS SEEN FROM THE EARLIER CONDUCT OF THE ASSESSEE IT IS CLEAR THAT THE ASSESSEE IS AVOIDING COMPLIANCE BEFORE THIS OFFICE. PERUSAL OF THE ABOVE LETTER RECEIVED ON 18.12.12 FURTHER PROVES THAT THE ASSESSEE IS DEL IBERATELY AVOIDING MAKING I.T.A .NO.-3261/DEL/2013 5 COMPLIANCE BEFORE THE OFFICE OF COMMISSIONER (APPEA LS). IT IS SEEN THAT THIS LETTER CLAIMS THAT . CLIENT IS OUT OF INDIA AND IN HIS ABSENCE DOCUMENT S CANNOT BE SIGNED.' 8.11 HOWEVER, PERUSAL OF THE FILE SHOWS THAT THERE IS A POWER OF ATTORNEY ON FILE BY SH. RAMAN KUMAR KAPUR IN FAVOUR OF BHARD WAJ TAJENDER, CA AND SH. BHARAT SEHGAL, REGARDING THE APPEAL AGAINST THE ASSESSMENT FOR A.Y. 2008-09 AS PER WHICH THEY HAVE THEIR RIGHT TO APPEA R ON BEHALF OF THE APPELLANT AND TO FILE DOCUMENTS AND TO REPRESENT TH E APPELLANT AND ALSO THAT THEIR ACTIONS AND STATEMENTS WILL BE BINDING ON THE APPELLANT AND WILL BE CONSIDERED AS HAVING BEEN MADE BY THE APPELLANT. TH E POWER OF ATTORNEY SPECIFICALLY STATES AS UNDER ;- 'I, RAMAN KUMAR KAPOOR DO HEREBY AUTHORISE CA BHARD WAJ TAJENDER, CHARTERED ACCOUNTANT, S/O (LATE) SH. I.J.K. BHARDWAJ AND BHARAT SEHGAL, B-519, NEHRU GROUND, FARIDABAD, TO EXAMINE MY INCOME TAX CASE, FORWARD STATEMENTS PREPARED BY US. RENDER EXPLANATIONS AS INSTRUCTED ORALLY OR IN WRITING FRO M TIME TO TIME AND GENERALLY TO REPRESENT ME IN CONNECTION WITH MY INC OME TAX APPEAL AND APPELLATE PROCEEDINGS FOR THE A/Y. 08-09 AND TO PRODUCE MY ACCOUNTS BOOKS AND DOCUMENTS AS DESIRED BY THE AUTH ORITIES FROM TIME TO TIME. ALL THEIR ACTIONS AND STATEMENTS WILL BE BINDING ON ME AND WILL BE CONSIDERED AS HAVE BEEN MADE BY ME.' 8.12 THUS IT IS CLEAR THAT THE POWER OF ATTORNEY HOLDERS SH. BHA RDWAJ TAJENDER, CA AND SH, BHARAT SEHGAL WERE FULLY AUTHO RIZED TO REPRESENT THE ASSESSEE AND ALSO TO PRODUCE HIS BOOKS OF ACCOUNT A ND DOCUMENTS, AND ALSO EXPLANATIONS ETC. IN FACT THE POWER OF ATTORNEY CLEARLY STATES THAT ALL THEIR ACTIONS AND STATEMENTS WILL BE BINDING ON THE APPEL LANT AND WILL BE CONSIDERED AS HAVE BEEN MADE BY THE APPELLANT. 8.13 IN VIEW OF THE ABOVE SITUATION IT IS CLEAR THA T THERE WAS NO REASON TO WAIT FOR THE CLIENT TO SIGN THE DOCUMENTS AND BOTH THE COUNSELS COULD VERY WELL HAVE DONE THE SAME, THUS IT IS CLEAR THAT THE APPELLANT AND ALSO HIS REPRESENTATIVES ARE NOT INTERESTED IN PROSECUTING T HE APPEAL AS THEY HAVE REPEATEDLY EITHER BEEN SEEKING ADJOURNMENT OR NON C OMPLIANCE IS BEING MADE TO THE NOTICES ISSUED OR ON THE ADJOURNED DATE S, SOME OF WHICH WERE FIXED ON THE SPECIFIC REQUEST OF THE APPELLANT, STI LL NON COMPLIANCE WAS MADE. 8.14 IN CIT VS B.N, BHATTACHARYA (1977) 118 ITR 461 (SC), THE IION'BLE SUPREME COURT WHILE DEALING WITH THE ISSUE OF PROSE CUTION OF APPEAL HAS STATED THAT 'PREFERRING AN APPEAL MEANS MORE THAN F ORMALLY FILING IT BUT EFFECTIVELY PURSUING IT. THE HON'BLE ITAT, DELHI, IN CIT VS MULTIPLAN INDIA PVT. LTD., AS REPORTED IN 38 ITD 320 (DELHI), WHEN FACED WITH A SIMILAR SITUATION OF NON PROSECUTION OF APPEAL DISM ISSED THE APPEAL OF REVENUE, 8 15 IN VIEW OF THE ABOVE SITUATION AS DISCUSSED A BOVE, IT IS CLEAR THAT THE APPELLANT IS NOT INTERESTED IN PROSECUTING THE APPE AL AND IN FACT IS AVOIDING COMPLIANCE TO THE NOTICES ISSUED BY THIS OFFICE AND IS AVOIDING SUBMITTING OF ANY EXPLANATIONS, DOCUMENTS ETC BEFORE THE COMMISSI ONER (APPEALS). THE PROVISIONS OF SECTION 251(1) PROVIDE THAT THE COMMI SSIONER (APPEALS) I.T.A .NO.-3261/DEL/2013 6 CANNOT ONLY CONFIRM, REDUCE OR ANNUL THE ASSESSMENT , BUT ALSO CAN ENHANCE THE SAME, IT APPEARS THAT THE APPELLANT IS AFRAID T HAT ON EXAMINATION OF THE CASE BY THE COMMISSIONER (APPEALS), ENHANCEMENT MAY RESULT OR THE CASE MAY BE FURTHER STRENGTHENED AGAINST THE ASSESSEE AS THE COMMISSIONER (APPEALS) HAS ALL THE POWERS OF THE ASSESSING OFFIC ER AND FURTHER FACTS MAY BE BROUGHT TO LIGHT WHICH MAY BE FURTHER CONFIRMATO RY OF THE ACTION OF THE ASSESSING OFFICER. THIS IMPRESSION IS DRAWN BY THE UNDERSIGNED IN VIEW OF THE CONTINUOUS AND DELIBERATE SEEKING OF ADJOURNMEN TS AND NON COMPLIANCE OVER A VERY LONG PERIOD OF TIME DURING WHICH THE AP PELLATE PROCEEDINGS HAVE CONTINUED. 5. AGGRIEVED BY THIS THE ASSESSEE IS IN APPEAL BEFO RE THE TRIBUNAL AGITATING THE OPPORTUNITY OF BEING HEARD AND ON MERIT. NO ON E WAS PRESENT ON BEHALF OF THE ASSESSEE AT THE TIME OF HEARING HOWEVER CONSIDE RING THE MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LD. SR. DR, IT WAS CONSIDERED APPROPRIATE TO RESTORE THE ISSUE BACK TO THE FILE TO THE CIT(A). IT IS SEEN THAT THE 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 FAMOUS AND CELEBRATED RULE OF NATURAL JUSTICE. THE PRINCIPLES OF NATURAL JUSTICE ARE THOSE WHICH HAVE BEEN LAID OUT BY THE COURTS AS BEING THE MINIMUM PR OTECTION OF THE RIGHTS OF AN INDIVIDUAL AGAINST THE ARBITRARY PROCEDURE THAT MAY BE ADOPTED BY A JUDICIAL, QUASI-JUDICIAL AND ADMINISTRATIVE AUTHORITY WHILE M AKING AN ORDER AFFECTING THOSE RIGHTS. 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 V ERY 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. 5.1. IN THE CELEBRATED JUDGEMENT OF THE APEX COURT IN THE CASE OF A.K.KRAIPAK VS- UNION OF INDIA (1969) 2 SCC 262, I T 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 T O AN END AND NOT AN END IN I.T.A .NO.-3261/DEL/2013 7 THEMSELVES AND THOUGH IT IS NOT POSSIBLE TO MAKE AN EXHAUSTIVE CATALOGUE OF SUCH RULES HOWEVER IT CAN BE READILY SAID THAT THER E ARE TWO BASIC MAXIMS OF NATURAL JUSTICE NAMELY AUDI ALTERAM PARTEM AND N EMO JUDEX IN RE SUA. IN THE PRESENT FACTS OF THE CASE WE ARE CONCERNED WITH THE MAXIM AUDI ALTERM PARTEM WHICH AGAIN MAY HAVE MANY FACETS TWO OF THEM (A) NOTICE OF THE CASE TO BE MET; AND (B) OPPORTUNITY TO EXPLAIN. THEIR LORD SHIPS HAVE CAUTIONED THAT THESE RULES CANNOT BE SACRIFICED AT THE ALTAR OF TH E ADMINISTRATIVE CONVENIENCE OR CELEBRITY. 5.2. HAVING THUS ADDRESSED THE LEGAL POSITION QUA THE RIGHT TO BE HEARD WE ARE NECESSARILY REQUIRED TO ADDRESS THE CORRESPONDING D UTY OF THE PARTY INVOKING THE SAID RIGHT. IT IS NECESSARY TO BEAR IN MIND AS A C AUTION THAT IT CANNOT BE OVER- EMPHASIZED THAT THE RIGHT TO BE HEARD HAS A CORRESP ONDING DUTY THAT THE PARTY INVOKING THE DISCRETION OF THE COURT HAS TO ITSELF ENSURE THAT IT DOES NOT ABUSE THE EXERCISE OF DISCRETION IN ITS FAVOUR. IT IS SE EN THAT IN THE FACTS OF THE PRESENT CASE THE ASSESSEE WHO HAS BEEN REPRESENTED THROUGH HIS COUNSEL HAS REPEATEDLY SOUGHT AN ADJOURNMENT WHICH IS EVIDENT FROM THE ABO VE QUOTED PARAS. HOWEVER BEING OF THE VIEW THAT THE ASSESSEE SHOULD NOT SUFF ER ON ACCOUNT OF THE FAULT OF THE COUNSEL AND CONSIDERING THE PLEA RAISED BY THE ASSESSEE BEFORE THE TRIBUNAL BY WAY OF THE PRESENT APPEAL WE DEEM IT APPROPRIATE TO RESTORE THE ISSUE BACK TO THE FILE TO THE CIT(A) WITH THE DIRECTION TO DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUN ITY OF BEING HEARD. IT IS HOPED THAT THE OPPORTUNITY SO PROVIDED TO THE ASSES SEE IS NOT ABUSED AND LOST AND THE ASSESSEE SHOULD ENSURE THAT FULL AND PROPER COMPLIANCE IS MADE IN SUPPORT OF ITS GROUNDS BEFORE THE CIT(A) BY ENSURIN G A PROPER REPRESENTATION IN LETTER AND SPIRIT AS THE DOORS OF JUSTICE ARE CLOSE D TO THE PARTY WHO ABUSES THE PROCESS OF LAW. IT MAY BE FURTHER CLARIFIED THAT I N THE EVENTUALITY THE ASSESSEE DOES NOT FULLY PARTICIPATE IN THE PROCEEDINGS AND E NSURES THAT THE HEARING IS I.T.A .NO.-3261/DEL/2013 8 CONCLUDED AND IN THE EVENTUALITY THE ASSESSEE DOES NOT SHOW FULL COMPLIANCE THE LD. CIT(A) WOULD BE AT LIBERTY TO DECIDE THE APPEAL ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 03 RD OF JANUARY 2014. SD/- SD/- (T.S.KAPOOR) (DIVA SINGH) ACCOUNTANT MEMBER JUDI CIAL MEMBER DATED:- 03/01/2014 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI