PUNIT JAIN, PATNA V. ITO, WARD-5(4), PATNA

ITA 40/PAT/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1131 (ITAT-PATNA)
• Duration Of Justice: 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 09-06-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: ABHI SARKAR
• Keywords: Opportunity of being heard; Principle of natural justice; Right to appeal; Condonation of delay; Set aside
• Section: 250

Judgement Text

1 ITA NO. 40/PAT/2020 PUNIT JAIN, AY 2009-10 IN THE INCOME TAX APPELLATE TRIBUNAL PATNA BENCH, VIRTUAL HEARING AT KOLKATA ( ) . . , ) [BEFORE SHRI A. T. VARKEY, JM] I.T.A. NO. 40/PAT/2020 ASSESSMENT YEAR:2009-10 PUNIT JAIN (PAN: AHFPJ3385B) VS. INCOME TAX OFFICER, WARD-5(4), PATNA APPELLANT RESPONDENT DATE OF HEARING 11.12.2020 DATE OF PRONOUNCEMENT 18.12.2020 FOR THE APPELLANT SHRI ABHI SARKAR, AR FOR THE RESPONDENT SHRI AJAY KUMAR, DR ORDER THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A), HAZARIBAGH DATED 20-03-2020 FOR ASSESSMENT YEAR 2009-10. 2. APPEAL OF ASSESSEE IS TIME BARRED BY 21 DAYS. AFTER HEARING THE PRAYER OF LD. AR SHRI ABHI SARKAR FOR CONDONATION OF DELAY AND TAKING INTO CONSIDERATION THE CAUSE FOR THE DELAY, I CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING. 3. AT THE TIME OF HEARING, LD. AR OF THE ASSESSEE SUBMITTED THAT BOTH THE LOWER AUTHORITIES HAVE PASSED THEIR ORDERS EX PARTE. THE MAIN GRIEVANCE OF ASSESSEE VIDE PARA (IV) OF GROUND OF APPEAL BEFORE ME IS THAT FOR THAT THE ORDER OF THE LD. ASSESSING OFFICER IS FURTHER VIOLATIVE OF THE SETTLED PRINCIPLES OF NATURAL JUSTICE INASMUCH AS NO OPPORTUNITY MUCH LESS ADEQUATE OPPORTUNITY WAS EVER AFFORDED TO THE APPELLANT TO FURNISH ITS DEFENCE IN COURSE OF PENALTY PROCEEDINGS. FROM A PERUSAL OF GROUND NO.(IV) AND THE ORDERS OF THE LOWER AUTHORITIES, IT IS DISCERNED THAT BOTH THE AUTHORITIES BELOW HAVE PASSED EX-PARTE ORDERS 2 ITA NO. 40/PAT/2020 PUNIT JAIN, AY 2009-10 WITHOUT ALLOWING PROPER OPPORTUNITY OF BEING HEARD. IT IS NOTED THAT THE HEARING OF APPEAL WAS FIXED BY THE LD. CIT(A) BY OBSERVING VIDE PARA 5 AND 6 AS UNDER: 5. DURING THE APPELLATE PROCEEDINGS VARIOUS NOTICES FOR HEARING HAVE BEEN ISSUED AS UNDER: S. NO. DATE OF ISSUE OF LETTER DATE OF HEARING COMPLIANCE 1. 11.01.2017 27.01.2017 NO COMPLIANCE 2. 10.02.2017 23.02.2017 NO COMPLIANCE 3. 25.08.2017 06.09.2017 NO COMPLIANCE 5. THEREAFTER, THE HONBLE PCCIT (BIHAR & JHARKHAND), PATNA VIDE ORDER DATED 15.11.2017 IN EXERCISE OF POWERS UNDER SUB-SECTION (1), (2) & (3) OF SECTION 120 OF THE I. T. ACT, 1961 TRANSFERRED THIS CASE FROM THE CIT(A)-2, PATNA TO THE CIT(A), HAZARIBAGH. IN THIS CIRCUMSTANCES, FRESH OPPORTUNITY WAS GRANTED TO THE APPELLANT BY THIS OFFICE FOR SUBMISSION OF EXPLANATION VIDE NOTICES ISSUED AS UNDER: S. NO. DATE OF ISSUE OF LETTER DATE OF HEARING COMPLIANCE 1. 09.05.2019 27.05.2019 AR SRI ABHI SARKAR, ADVOCATE APPEARED, BUT NO WRITTEN SUBMISSION WAS MADE 2. 29.01.2020 14.02.2020 NO COMPLIANCE 3. 18.02.2020 04.03.2020 NO COMPLIANCE UNDER THE AFORESAID CIRCUMSTANCES, THE APPEAL WAS DISPOSED OFF BY THE LD. CIT(A) EX-PARTE WITH THE INFORMATION AVAILABLE ON RECORDS. SO IT IS NOTED THAT THE IMPUGNED APPELLATE ORDER HAS BEEN PASSED EX PARTE QUA THE ASSESSEE IS IN VIOLATION OF NATURAL JUSTICE. 4. IT IS NOTED THAT THE LD. CIT(A) HAS PASSED AN EX PARTE ORDER WITHOUT PROVIDING ANY PROOF OF SERVING THE NOTICE UPON THE ASSESSEE IN HIS APPELLATE ORDER. THEREFORE, THE IMPUGNED ORDER OF LD. CIT(A) IS ERRONEOUS FOR VIOLATION OF SUB-SECTIONS (1), (2), (2A) AND 2(B) OF SECTION 250 OF THE ACT. IT SHOULD BE KEPT IN MIND THAT IF AN ASSESSEE IS AGGRIEVED BY THE ORDER OF THE AO, THEN HE (ASSESSEE) HAS THE STATUTORY RIGHT TO FILE AN APPEAL BEFORE THE LD. CIT(A) AND HAS A RIGHT TO BE HEARD AS PER SUB-SECTION (2) OF SECTION 250 OF THE ACT. THIS VALUABLE/STATUTORY RIGHT OF THE ASSESSEE CANNOT BE LIGHTLY BRUSHED ASIDE . HAVING SAID SO, I EXPECT THE ASSESSEE TO BE DILIGENT WHILE PURSUING THE APPEAL. IN THE LIGHT OF ABOVE DISCUSSION, THE IMPUGNED ORDER OF THE LD. CIT(A) IS SET ASIDE AND THE APPEAL IS RESTORED BACK TO HIM 3 ITA NO. 40/PAT/2020 PUNIT JAIN, AY 2009-10 WITH DIRECTION TO PASS A SPEAKING ORDER BY GOING THROUGH THE STATEMENTS OF FACTS AS WELL AS ORAL/WRITTEN SUBMISSIONS/DOCUMENTS, IF ANY, FILED BY THE ASSESSEE. THE ASSESSEE IS DIRECTED TO BE DILIGENT AND EITHER APPEAR OR/AND FILE NECESSARY PAPERS BEFORE HIM, IF ADVISED TO DO SO AND THE LD. CIT(A) TO PASS A SPEAKING ORDER ON EACH GROUNDS RAISED BY THE ASSESSEE AS STIPULATED U/S 250(6) OF THE ACT AND IN ACCORDANCE TO LAW. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER IS PRONOUNCED IN THE OPEN COURT ON 18TH DECEMBER, 2020. SD/- (ABY. T. VARKEY) JUDICIAL MEMBER DATED : 18TH DECEMBER, 2020 JD(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT SHRI PUNIT JAIN, PROP. PARAS ENTERPRISES, 10, JAGDISH LOK APARTMENT, BORING CANAL ROAD, PATNA-1. 2 RESPONDENT ITO, WARD 5(4), PATNA 3. 4. 5. CIT(A), HAZARIBAGH CIT, HAZARIBAGH DR, ITAT, PATNA. / TRUE COPY, BY ORDER, SENIOR PVT. SECY/DDO.