Shri Yashpalsinh Banesinh Zala, Surat V. ITO, Ward-3(2)(3), Surat

ITA 349/SRT/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3368 (ITAT-SURAT)
• Duration Of Justice: 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 01-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside; Audi alteram partem

Judgement Text

SHRI YASHPALSINH BANESINH ZALA VS. ITO, WARD-3(2)(2), SURAT /ITA NO.349/SRT/2019 FOR A.Y. 2010-11 PAGE 1 OF 4 , , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . . ./ I.T.A NO.349/SRT/2019 [ [ / ASSESSMENT YEAR: 2010-11 SHRI YASHPALSINH BANESINH ZALA, 47, BHUVANESHWARI HOUSING SOC., DABHOLI ROAD, DABHOLI, SURAT 395 004. [PAN: AAHPZ 6936 B] V S . THE INCOME TAX OFFICER, WARD-3(2)(3), SURAT. / APPELLANT /RESPONDENT [ /ASSESSEE BY SHRI NISHIT SHAH CA /REVENUE BY MRS. ANUPAMA SINGLA SR.DR / DATE OF HEARING: 02.12.2019 /PRONOUNCEMENT ON: 02.12.2019 /O R D E R PER SANDEEP GOSAIN, JM: 1. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD.COMMISSIONER OF INCOME TAX(APPEALS)-3, SURAT DATED 15.02.2019 FOR THE ASSESSMENT YEAR 2010-11. 2. ON THE GROUNDS MENTIONED AT THE VERY OUTSET, WE NOTICED THAT THE PRESENT APPEAL WAS DECIDED BY THE LD.CIT(A) EX-PARTE AND WHILE APPLYING THE PRINCIPLES LAID DOWN IN THE CASE OF CIT VS. MULTIPLAN INDIA PVT. LTD. 38 ITD 320 (DEL). SHRI YASHPALSINH BANESINH ZALA VS. ITO, WARD-3(2)(2), SURAT /ITA NO.349/SRT/2019 FOR A.Y. 2010-11 PAGE 2 OF 4 3. DURING THE HEARING, LD.COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT LD. CIT(A) HAS PASSED THE EX-PARTE ORDER WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE HIS CASE, WHICH IS CONTRARY TO THE PRINCIPLE OF NATURAL JUSTICE. THEREFORE, THE LD.COUNSEL REQUESTED THAT THE IMPUGNED ORDER MAY BE CANCELLED AND THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE FILE OF THE LD.CIT(A) TO DECIDE THE SAME AFRESH, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 4. ON THE OTHER HAND, THE LEARNED SR.DR RELIED ON THE ORDERS OF THE AUTHORITIES BELOW AND CONTENDED THAT THE LEARNED CIT(A) HAS ALLOWED TWO OPPORTUNITIES I.E. 17.01.2019 & 01.02.2019 OF BEING HEARD TO THE ASSESSEE, BUT THE ASSESSEE HAS FAILED TO APPEAR BEFORE HIM NOR SOUGHT ANY ADJOURNMENT. THEREFORE, THE LEARNED CIT(A) WAS JUSTIFIED IN PASSING THE ORDER EX-PARTE. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS AS WELL AS THE RELEVANT PROVISIONS OF LAW. WE FIND THAT THE LEARNED CIT(A) HAS SIMPLY DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-APPEARANCE BY THE ASSESSEE ON VARIOUS DATES WHEREAS IT WAS THE DUTY OF THE LEARNED CIT(A) TO PASS A SPEAKING ORDER WHILE DISPOSING THE APPEAL EX-PARTE. THE PRINCIPLE AUDI ALTERAM PARTEM IS THE BASIC CONCEPT OF THE NATURAL JUSTICE. THE EXPRESSION AUDI ALTERAM PARTEM IMPLIES THAT A PERSON MUST BE GIVEN AN OPPORTUNITY TO DEFEND HIMSELF WHICH IS SIN QUA NON OF EVERY CIVILIZED SOCIETY THE RIGHT TO NOTICE, THE RIGHT TO PRESENT CASE AND EVIDENCE, RIGHT TO REFER ADVERT EVIDENCE, RIGHT TO EXAMINE, RIGHT TO LEGAL REPRESENTATION, SHRI YASHPALSINH BANESINH ZALA VS. ITO, WARD-3(2)(2), SURAT /ITA NO.349/SRT/2019 FOR A.Y. 2010-11 PAGE 3 OF 4 DISCLOSURE OF EVIDENCE TO PARTY, REPORT OF ENQUIRY BE SHOWN TO THE OTHER PARTY AND REASONED DECISION OR SPEAKING ORDER IS MUST. WE FIND THAT IN THE INSTANT CASE, THOUGH HEARINGS WERE FIXED ON VARIOUS DATES BUT THE ASSESSEE COULD NOT AVAIL THE PROPER HEARING, THEREFORE, WE ARE OF THE VIEW THAT THE ASSESSEE MUST BE GIVEN ONE MORE OPPORTUNITY OF BEING HEARD AND TO REPRESENT HIS CASE. THEREFORE, IN EXERCISE OF THE POWERS CONFERRED UNDER RULE 28 OF TRIBUNAL RULES, WE RESTORE BACK TO THE FILE OF THE LEARNED CIT(A) TO PROVIDE ONE MORE OPPORTUNITY AND ALSO THEREBY TO CONSIDER ALL THE POINTS SO RAISED BY THE ASSESSEE. NEVERTHELESS TO MENTION, THAT ASSESSEE WILL CO-OPERATE IN THE APPEAL PROCEEDINGS AND APPEAR BEFORE THE LEARNED CIT(A) AS AND WHEN THE HEARINGS FIXED BY THE LEARNED CIT(A). WE MAKE IT CLEAR THAT NON-ATTENDANCE WILL OF THE ASSESSEE BEFORE CIT (A) WILL ENTAIL CONFIRMATION OF THE IMPUGNED ADDITION MADE BY THE AO. THE ASSESSEE WILL FILE NECESSARY EVIDENCES ON WHICH HE WANTS TO RELY UPON. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 7. ORDER PRONOUNCED IN THE OPEN COURT ON 02-12-2019. SD/- SD/- (O.P.MEENA) (SANDEEP GOSAIN) ( /ACCOUNTANT MEMBER) ( /JUDICIAL MEMBER) / SURAT, DATED : 2 ND DECEMBER , 2019/ S.GANGADHARA RAO, SR.PS COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT SHRI YASHPALSINH BANESINH ZALA VS. ITO, WARD-3(2)(2), SURAT /ITA NO.349/SRT/2019 FOR A.Y. 2010-11 PAGE 4 OF 4