Shri Vijay H. Shah, Vapi V. ITO, Ward-9, , Vapi

ITA 379/SRT/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9830 (ITAT-SURAT)
• Duration Of Justice: 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 16-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Assessee Lawyers: RASESH SHAH
• Keywords: Opportunity of being heard; Principle of natural justice; Audi alteram partem
• Section: 54B

Judgement Text

VIJAY H.SHAH VS. ITO, WARD-9, VAPI/I.T.A. NO.379/SRT/2018/A.Y.2008-09 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI O. P. MEENA, ACCOUNTANT MEMBER I.T.A. NO.379/SRT/2018 : ASSESSMENT YEAR: 2008-09 VIJAY H.SHAH, NEAR JAIN TEMPLE, NEHRU STREET, VAPI. [PAN: AEQPS 7203 F] VS. THE INCOME TAX OFFICER, WARD-9, VAPI. APPELLANT RESPONDENT ASSESSEE BY SHRI RASESH SHAH CA REVENUE BY SMT. ANUPAMA SINGLA, SR.DR DATE OF HEARING 30.04.2019 DATE OF PRONOUNCEMENT 30.04.2019 O R D E R PER O. P. MEENA, AM 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME-TAX (APPEALS), VALSAD [IN SHORT CIT (A)] DATED 13.03.2018 PERTAINING TO ASSESSMENT YEAR 2008-09. 2. THE ASSESSEE HAS TAKEN THE GROUNDS OF APPEAL AGAINST THE DISALLOWANCE UNDER SECTION 54B AND CONFIRMING ADDITION OF RS. 8 LAKH IN RESPECT OF BANK DEPOSIT AND RS. 7 LAKH BEING LOAN TAKEN FROM THE WIFE OF THE ASSESSEE AND ADDITION OF RS. 1,25,000 ON ACCOUNT OF AGRICULTURAL INCOME. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT NO PROPER OPPORTUNITY OF HEARING AFFORDED TO THE ASSESSEE. THE LD. CIT (A) WAS NOT JUSTIFIED IN REJECTING THE APPEAL OF THE ASSESSEE EX-PARTE. THE DOCUMENTS RELIED BY THE AO WERE NOT MADE AVAILABLE TO ASSESSEE. THE LD. COUNSEL PRAYED THAT THE APPEAL BE RESTORED TO THE VIJAY H.SHAH VS. ITO, WARD-9, VAPI/I.T.A. NO.379/SRT/2018/A.Y.2008-09 PAGE 2 OF 3 FILE OF LD. CIT (A) WITH A DIRECTION THAT PROPER OPPORTUNITY OF BEING HEARD MAY BE ALLOWED TO THE ASSESSEE. 4. THE LD. SENIOR D.R. RELIED ON THE ORDERS OF THE AUTHORITIES BELOW, HOWEVER, HAS NO OBJECTION IF THE ENTIRE ISSUE IS SET-ASIDE TO CIT (A). 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. WE FIND THAT THE LD. CIT(A) HAS SIMPLY DISMISSED THE APPEAL FOR NON-APPEARANCE BY THE ASSESSEE ON VARIOUS DATES. WE FIND THAT THE LD. CIT (A) HAS NOT ALLOWED PROPER OPPORTUNITY OF BEING HEARD. THE PRINCIPLE OF AUDI ALTERAM PARTEM IS THE BASIC CONCEPT OF NATURAL JUSTICE. THE EXPRESSION AUDI ALTERAM PARTEM IMPLIES THAT A PERSON MUST BE GIVEN AN 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 EVIDENCE, RIGHT TO CROSS EXAMINATION, RIGHT TO LEGAL REPRESENTATION, DISCLOSURE OF EVIDENCE TO PARTY, REPORT OF ENQUIRY TO BE SHOWN TO THE OTHER PARTY AND REASONED DECISIONS OR SPEAKING ORDERS. WE TOOK THIS GUIDANCE FOR RIGHT OF HEARING, FROM THE RATIO AS IS LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF MANEKA GANDHI V. UNION OF INDIA, WHEREIN HON'BLE SUPREME COURT HAS LAID DOWN THAT RULE OF FAIR HEARING IS NECESSARY BEFORE PASSING ANY ORDER. WE FIND THAT IT IS PRE- DECISION HEARING STANDARD OF NORM OF RULE OF AUDI ALTERAM PARTEM. WE FIND THAT IN THIS INSTANT CASE, THE ASSESSEE WAS NOT GIVEN PROPER HEARING. THEREFORE, WE ARE OF THE VIEW THAT THE ASSESSEE MUST BE GIVEN ONE MORE OPPORTUNITY OF HEARING AND TO REPRESENT HIS CASE. THEREFORE, IN EXERCISE OF POWER CONFERRED UNDER RULE 28 OF TRIBUNAL RULES, WE RESTORE THIS APPEAL TO THE FILE OF LD. CIT (A) FOR RECONSIDERATION ALL GROUNDS OF APPEAL AFTER ALLOWING PROPER OPPORTUNITY OF BEING HEARD IN ACCORDANCE WITH LAW. NEVERTHELESS, TO MENTION THAT THE ASSESSEE WILL PERSONALLY OR THROUGH HIS AUTHORIZED REPRESENTATIVE WILL APPEAR BEFORE THE LD. CIT (A) ON 26.06.2019 AT 10.00 AM FOR WHICH NO NOTICE WILL BE ISSUED TO HIM AND MAKE HIS SUBMISSIONS OR COMPLY WITH HEARING BEFORE CIT (A) ASPER DATED OF HEARING THAT MAY BE GRANTED TO THE ASSESSEE . WE MAKE IT CLEAR THAT NON ATTENDANCE WILL VIJAY H.SHAH VS. ITO, WARD-9, VAPI/I.T.A. NO.379/SRT/2018/A.Y.2008-09 PAGE 3 OF 3 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, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. ORDER PRONOUNCED IN THE OPEN COURT ON 30.04.2019 . SD/- SD/- (H.S.SIDHU) (O.P.MEENA) ( /JUDICIAL MEMBER) ( /ACCOUNTANT MEMBER) / SURAT, DATED : 30 TH APRIL , 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