Rathi Re- Rollers India Ltd., New Delhi V. ITO, New Delhi

ITA 332/DEL/2012

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0155 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 26-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 23-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH. J .S.R EDDY , ACCOUNTANT MEMBER I.T.A .NO. - 332 /DEL/201 2 (ASSESSMENT YEAR - 200 8 - 09 ) RATHI RE - ROLLERS INDIA LTD., A - 2416, MOHAN CO - OPERATIVE INDL. ESTATE, MATHURA ROAD, NEW DELHI - 110044. PAN - AAACR1115N (A PPELLANT) VS IT O , WARD - 15(1), NEW DELHI . (RESPONDENT) APPELLANT BY SH.A.T.PANDA, ADV. RESPONDENT BY SH.K.K.JAISWAL, SR. DR ORDER PER DIVA SINGH, JM BY THE PRESENT APPEAL, THE ASSESSEE ASSAILS THE CORRECTNESS OF THE ORDER DATED 11.11.2011 OF THE CIT(A) - XVIII, NEW DELHI PERTAINING TO 200 8 - 09 ASSESSMENT YEAR ON VARIOUS GROUNDS. HOWEVER THE PARTIES WERE HEARD ONLY IN REGARD TO GROUND NO. - 2 WHICH THOUGH ARGUMENTATIVE ADDRESSE S THE GRIEVANCE OF THE ASSESSEE. THE SAME IS REPRODUCED FOR READY - REFERENCE HIGHLIGHTING THE ISSUES RAISED : - 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE LAW, LD. COMMISSIONER INCOME TAX (APPEALS) HAS ERRED DISMISSING THE APPEAL EX - PARTE WITHOUT AFFORDING REASONABLE OPPORTUNITY OF HEARING AS CONTEMPLATED BY THE STATUTE. HE ALSO FAILED TO OBSERVE T HE RULE OF NATURAL JUSTICE WHEN PASSED THE IMPUGNED APPEAL ORDER IN AS MUCH AS THE ADJOURNMENT WAS TAKEN ON ACCOUNT OF BONAFIDE REASONS AS THE COUNSEL OF THE APPELLANT COMPANY SH.R.K.VERMA WAS NOT IN A POSITION TO UNDERTAKE MOVEMENT BY HIS LEG. FURTHER TH E LD. COMMISSIONER OF INCOME TAX (APPEALS) HAVING TAKEN THE CHARGE FROM HIS PRECEDATORS POSTED THE HEARING ON 23.09.2011 FIRST TIME WHICH WAS ADJOURNED TO 09.11.2011. ON 09.11.2011, THE APPLICATION SEEKING ADJOURNMENT WAS FILED WHICH WAS NEITHER CONSIDERE D NOR TAKEN ON RECORD BEFORE DECIDING THE APPEAL FILED BY THE APPELLANT. (EMPHASIS PROVIDED) DATE OF HEARING 26 .0 6 .2015 DATE OF PRONOUNCEMENT 30 . 0 6 .2015 I.T.A .NO. - 332 /DEL/201 2 PAGE 2 OF 4 2. THE CORRECTNESS OF THE GRIEVANCE POSED INFACT COMES OUT FROM PARA 2 OF THE IMPUGNED ORDER ITSELF AND IS REPRODUCED HEREUNDER FOR READY - REFERENCE: - 2. IN RESPONSE TO NOTICE ISSUED U/S 250 OF THE ACT, AUTHORIZED REPRESENTATIVE SHRI.R.K.VERMA, CA (IN SHORT LD.AR ) ATTENDED THE PROCEEDING ON BEHALF OF THE APPELLANT BEFORE MY PREDECESSOR LD.CIT(A) AND SOUGHT TIME AS WRITTEN SUBMISSION WAS NOT READY. ACCORDING LY, THE CASE WAS ADJOURNED TO 22.07.2011.. ON THE SAID DATE WRITTEN SUBMISSION WAS FILED BY THE APPELLANT AND SOUGHT TIME ON THE GROUND THAT THE COUNSEL HAD A FRACTURE. ACCORDINGLY, THE CASE WAS ADJOURNED ON 15.09.2011. HOWEVER, ON THE SAID DATE NO ONE APPEARED NOR ANY ADJOURNMENT APPLICATION AS FILED BY THE APPELLANT. FURTHER, THE CASE WAS FIXED FOR 10.10.2011 BY ISSUE OF NOTICE U/S 250 DATED 23.09.2011. AGAIN, ON THE SAID DATE AN APPLICATION WAS FILED BY THE APPELLANT SEEKING ADJOURNMENT. ACCORDINGL Y, THE CASE WAS ADJOURNED TO 09.11.2011 AFFORDING THE FINAL CHANCE TO BE PRESENT FOR HEARING IN THE APPEAL. HOWEVER, ON THE SAID DATE AGAIN NO ONE HAS APPEARED NOR ANY ADJOURNMENT APPLICATION HAS BEEN FILED BY THE APPELLANT. CONSIDERING THE ABOVE, I HAVE NO OPTION TO CONCLUDE THE APPEAL AS PER MATERIAL AVAILABLE ON RECORD. 2.1. CONSIDERING THE RELEVANT FINDING EXTRACTED ABOVE , WE FIND THAT ON FACTS, IT CANNOT BE SAID THAT THE ASSESSEE HAS BEEN GRANTED A REASON ABLE OPPORTUNITY OF BEING HEARD . ON FACTS, IT IS SEEN THAT AS A RESULT OF CHANGE IN THE INCUMBENT OCCUPYING THE OFFICE OF THE CIT(A AFTER GIVING ONE OPPORTUNITY PASSED THE IMPUGNED ORDER. NOTWITHSTANDING THE ASSESSEE S PLEA THAT ADJOURNMENT APPLICATION PLACED ON RECORD WAS NOT CONSIDERED THE FACT REMAIN THAT IN THE FACTS OF THE PRESENT CASE THE ORDER UNDER CHALLENGE WAS PASSED WITHOUT HEARING THE ASSESSEE. 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 M OST 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 PROTECTION OF THE RIGHTS OF AN INDIVIDUAL AGAINST THE ARBITRARY PROCEDURE THAT MAY BE ADOPTED BY A J UDICIAL, 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 EMB ODIED 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 I.T.A .NO. - 332 /DEL/201 2 PAGE 3 OF 4 FUNCTIONARIES. ACCORDINGLY, THE PR INCIPLE 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. 2 .2. IN THE CELEBRATED JUDGEMENT OF THE APEX COURT IN THE CASE OF A.K.KRAIPAK VS - UNION OF INDIA (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 ALTERM PARTEM WHICH AGAIN MAY HAVE MANY FACETS TO IT TWO OF WHICH MAY BE : (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 ADMINISTRATI VE 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 OPPORTU NITY OF BEING HEARD WHICH ADMITTEDLY HAS NOT BEEN GIVEN TO THE ASSESSEE , WE ARE INCLINED TO ACCEPT THE PRAYER OF THE ASSESSEE ON A CAREFUL CONSIDERATION OF THE LEGAL POSITION THEREON. ACCORDINGLY THE G ROUND NO. - 1 RAISED BY THE ASSESSEE IS ALLOWED AND THE REMAINING GROUNDS ARE RESTORED BACK TO THE FILE OF THE CIT, NEW DELHI WITH THE DIRECTION TO DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 3 . AS A RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 3 0 T H OF JUNE 2015. S D / - S D / - ( J .S. REDDY ) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 3 0 /0 6 /2015 *AMIT KUMAR* I.T.A .NO. - 332 /DEL/201 2 PAGE 4 OF 4 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI