Shri GOPAL DAS KUKREJA, Indore V. THE DCIT 1(1), Indore

ITA 344/IND/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5844 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-01-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 07-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

ITA NO.344 OF 2014 GOPAL DAS KUKREJA 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO. 344/IND/2014 A.Y. 2009-10 GOPAL DAS KUKREJA, INDORE PAN AJQPK 9118 E :: APPELLANT VS DCIT-1(1), INDORE :: RESPONDENT ASSESSEE BY MS. PREETI PATWA, CA RESPONDENT BY SHRI R.A. VERMA, DR DATE OF HEARING 21.1.2016 DATE OF PRONOUNCEMENT 21.1.2016 O R D E R PER SHRI B.C. MEENA, AM THIS APPEAL IS FILED BY THE ASSESSEE CHALLENGING TH E ORDER OF LD. CIT(A)- I, INDORE, DATED 16.1.2014. 2. THE SUM AND SUBSTANCE OF THE GROUNDS OF THE APPE AL IS THAT THE LD. CIT(A) HAS ERRED IN DISMISSING THE APPEAL OF THE AS SESSEE FOR NON-PROSECUTION EVEN WHEN NO REASONABLE OPPORTUNITY OF BEING HEARD WAS GRANTED TO THE ASSESSEE. 3. WE FIND THAT THE APPEAL HAS BEEN FILED DELAYED B Y 9 DAYS, FOR WHICH, THE ASSESSEE HAS FILED APPLICATION FOR C ONDONATION OF ITA NO.344 OF 2014 GOPAL DAS KUKREJA 2 DELAY IN FILING THE APPEAL EXPLAINING THE REASONS F OR IT. THE ASSESSEE HAS ALSO ENCLOSED AFFIDAVIT IN SUPPORT OF THE CONTENTS OF THE APPLICATION. CONSIDERING THE EXPLANATION, WE CONDONE THE DELAY OF 9 DAYS IN FILING THE APPEAL. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT NO PROPER, REASONABLE AND MEANINGFUL OPPORTUNITY WAS GIVEN BY THE LD. CIT(A) TO THE ASSESSEE, THEREFORE, IT IS PRAYED THAT THE APPEAL MAY BE RESTORED BACK TO THE FILE OF THE LD. CIT(A). 4. THE LD. SENIOR D.R. OBJECTED TO RESTORATION AND RELIED UPON THE ORDERS OF THE LOWER AUTHORITIES. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE O RDERS OF LOWER AUTHORITIES. WE FIND THAT LD. CIT(A) DID NOT PASS T HE ORDER ON MERIT AND DISMISSED THE APPEAL PASSING EXPARTE ORDER AS NOTIC ES WERE REMAINED UNCOMPLIED WITH. WE ARE OF THE VIEW THAT THE PRINC IPLE OF AUDI ALTERAM PARTEM IS THE BASIC CONCEPT OF NATURAL JUSTICE. THE EXPRES SION 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, RIGHT TO REBUT ADVERSE E VIDENCE, RIGHT TO CROSS EXAMINATION, RIGHT TO LEGAL REPRESENTATION, DISCLOS URE OF EVIDENCE TO PARTY, REPORT OF ENQUIRY TO BE SHOWN TO THE OTHER PARTY AN D REASONED DECISIONS OR SPEAKING ORDERS. WE FIND THAT THE RIGHT OF HEARING IS DECIDED BY THE HON'BLE SUPREME COURT IN THE CASE OF MANEKA GANDHI VS. UNIO N OF INDIA (1978 AIR 597; 1 SCC 248), WHEREIN HON'BLE SUPREME COURT HAS HELD THAT RULE OF FAIR HEARING IS NECESSARY BEFORE PASSING ANY ORDER. WE F IND THAT IT IS PRE-DECISION ITA NO.344 OF 2014 GOPAL DAS KUKREJA 3 HEARING STANDARD OF NORM OF RULE OF AUDI ALTERAM PARTEM. WE FIND THAT IN THE INSTANT APPEAL, THE ASSESSEE WAS NOT GIVEN PROPER A ND EFFECTIVE HEARING. THEREFORE, WE ARE OF THE VIEW THAT THE ASSESSEE MUS T BE GIVEN ONE MORE OPPORTUNITY OF HEARING AND TO REPRESENT THE CASE. T HEREFORE, WE ALLOW THIS APPEAL. THE ASSESSEE IS DIRECTED TO REMAIN PRESENT BEFORE THE LD. CIT(A) WITHIN 2 MONTHS AFTER THE RECEIPT OF THIS ORDER. TH E LD. CIT(A) SHALL DECIDE THE MATTER AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE AS PER LAW. 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 21.1.2016 . SD/- ( D.T. GARASIA) JUDICIAL MEMBER SD/- (B.C. MEENA) ACCOUNTANT MEMBER DATED : 21.1.2016 !VYS! COPY TO: APPELLANT / RESPONDENT / CIT(A) / CIT / DR, INDORE