VISHAL AGARWALLA, TINSUKIT V. Assistant Commissioner of Income Tax, Circle-Tinsukia, Tinsukia

ITA 410/GTY/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8221 (ITAT-GUWAHATI)
• Duration Of Justice: 10 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 30-08-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M K DAS
• Assessee Lawyers: S P BHATI
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 22; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL GAUHATI ECOURT, AT KOLKATA BEFORE SHRI A. T. VARKEY, JM &DR. A.L.SAINI, AM ./ITA NO.410/GAU/2019 ( / ASSESSMENT YEAR: 2011-12) VISHAL AGARWALLA L-32, UDHYAN ROAD, UTTAM NAGAR, WEST DELHI, DELHI 110059. VS. ACIT, CIRCLE - TINSUKIA TINSUKIA, ASSAM ./ ./PAN/GIR NO.: ADEPA 6600 P (ASSESSEE) .. (REVENUE) ASSESSEE BY : SHRI S.P. BHATI, FCA RESPONDENT BY: SHRI M.K. DAS, ADDL. CIT / DATE OF HEARING : 18/06/2020 /DATE OF PRONOUNCEMENT : 17/07/2019 / O R D E R PER DR. A. L. SAINI: THE CAPTIONED APPEAL FILED BY THE ASSESSEEPERTAI NING TO ASSESSMENT YEAR 2011-12, IS DIRECTED AGAINST THE ORDER PASSED BY TH E COMMISSIONER OF INCOME TAX (APPEAL) -DIBRUGARH, IN APPEAL NO.CIT(A), DIBRUGARH /10063/2018-19, DATED 19.06.2019, WHICH IN TURN ARISES OUT OF AN ASSESSME NT ORDER PASSED BY THE ASSESSING OFFICER U/S 144 OF THE INCOME TAX ACT, 1 961 (IN SHORT THE ACT). 2. GROUNDS OF APPEAL RAISED BY THE ASSESSEEARE AS F OLLOWS: 1. THE APPELLANT IS PRESENTLY RESIDING AT DELHI, H E DID NOT RECEIVE ANY NOTICE U/S 148 OF THE IT ACT, 1961. 2. NO SHOW CAUSE- NOTICE WAS RECEIVED BY THE APPELL ANT IN RESPECT OF THE ADDITION OF RS. 13,50,000/- U/S 69C. 3.LEARNED AO HAS NOT PROVIDED ANY OPPORTUNITY OF BE ING HEARD BEFORE PASSING THE ASSESSMENT U/S 144. 4. THE APPELLANT CRAVES TO LEAVE TO ADD, AMEND, ALT ER, VARY AND/OR WITHDRAW ANY OR ALL THE ABOVE GROUNDS OF APPEAL. VISHAL AGARWALLA ITA NO.410/GAU/2019 ASSESSMENT YEAR:2011-12 P PP PA AA AG GG GE EE E | || | 2 22 2 3. AT THE OUTSET ITSELF, THE LEARNED COUNSEL SUBMIT TED THAT THE ASSESSEE DID NOT GET THE NOTICE OF HEARING DURING THE ASSESSMENT STAGE A S WELL AS DURING THE APPELLATE PROCEEDINGS ALSO. HOWEVER, DURING THE APPELLATE PRO CEEDINGS, THE ASSESSEE SOUGHT ADJOURNMENT ON 13.03.2019 AND THEREAFTER THE ASSESS EE WAS NOT AWARE ABOUT THE FIXATION OF HEARING BEFORE THE LD CIT(A), AS THE AS SESSEE DID NOT RECEIVE NOTICE OF HEARINGS. IN THIS CONNECTION, THE LEARNED COUNSEL T OOK US THROUGH PARA NO. 3 OF THE ORDER OF THE LD. CIT(A), WHICH READS AS FOLLOWS: THE CASE WAS FIXED FOR HEARING ON 28.02.2019. FIXA TION NOTICE WAS SENT BY E-MAIL AS WELL AS TO THE PAN ADDRESS OF ASSESSEE. THERE WA S NO RESPONSE. IT WAS FIXED AGAIN FOR HEARING ON 13.03.2019. THERE WAS AN ADJOU RNMENT APPLICATION. THEREAFTER, THE CASE WAS FIXED FOR HEARING ON 21.05 .2019 AND 18.06.2019. NO ONE ATTENDED. THE APPEAL IS THEREFORE DECIDED BASED ON AVAILABLE FACTS. THE LD COUNSEL THEREFORE SUBMITS BEFORE THE BENCH T HAT IT IS ABUNDANTLY CLEAR THAT ASSESSEE HAS PARTICIPATED IN APPELLATE PROCEEDINGS AND SOUGHT AN ADJOURNMENT. HOWEVER, THE ASSESSEE COULD NOT ATTEND THE HEARINGS AFTER 13.03.2019, AS HE DID NOT RECEIVE NOTICES OF HEARINGS THEREFORE LD COUNSEL AS SAILED THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE COULD NOT REPRESENT HI S CASE BEFORE LD. CIT(A) AND THE ORDER BEING AN EX-PARTE ORDER, STOOD VITIATED O N ACCOUNT OF VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. THE LD. COUNSEL FOR T HE ASSESSEE CONTENDED THAT IN THE INTEREST OF JUSTICE, ANOTHER OPPORTUNITY TO CONTEST THE APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY MAY BE GRANTED TO THE ASSESSEE. THE LD. DR DID NOT HAVE ANY OBJECTION IF THE MATTER IS REMITTED BACK TO THE FIL E OF THE LD. CIT(A). 4. WE HEARD BOTH THE PARTIES AND CAREFULLY GONE THR OUGH THE SUBMISSION PUT FORTH ON BEHALF OF THE ASSESSEE ALONG WITH THE DOCUMENTS FURNISHED AND THE CASE LAWS RELIED UPON, AND PERUSED THE FACT OF THE CASE INCLU DING THE FINDINGS OF THE LD CIT(A) AND OTHER MATERIALS BROUGHT ON RECORD.WE NOT E THAT THE HONBLE SUPREME COURT IN M.S.GILL VS. THE CHIEF ELECTION COMMISSION 1978 AIR SC 851 HELD THE DICHOTOMY BETWEEN ADMINISTRATIVE AND QUASI-JUD ICIAL FUNCTION VIS--VIS THE DOCTRINE OF NATURAL JUSTICE IS PRESUMABLY OBSOLESCE NT AFTER KRAIPAK (A.K. KRAIPAK VS UOI AIR 1970 SC 150) WHICH MAKES THE WATER-SHED IN THE APPLICATION OF NATURAL JUSTICE TO ADMINISTRATIVE PROCEEDINGS. THE RULES OF NATURAL JUSTICE ARE VISHAL AGARWALLA ITA NO.410/GAU/2019 ASSESSMENT YEAR:2011-12 P PP PA AA AG GG GE EE E | || | 3 33 3 ROOTED IN ALL LEGAL SYSTEMS AND ARE NOT ANY NEW THE OLOGY. THEY ARE MANIFESTED IN THE TWIN PRINCIPLES OF NEMO JUDEX IN PARTESUA ( NO PERSON SHALL BE A JUDGE IN HIS OWN CASE) AND AUDI ALTEREM PARTEM (THE RIGHT TO BE HEARD). IT HAS BEEN POINTED OUT THAT THE AIM OF NATURAL JUSTICE IS TO SECURE JUSTIC E. 5. CONSIDERING THE ABOVE FACTS, WE NOTE THAT ASSESS EE HAS NOT GIVEN SUFFICIENT OPPORTUNITY OF BEING HEARD AND COULD NOT PLEAD HIS CASE SUCCESSFULLY BEFORE THE LD. CIT(A), HENCE IT IS A VIOLATION OF PRINCIPLE OF NAT URAL JUSTICE. WE NOTE THAT IT IS SETTLED LAW THAT PRINCIPLES OF NATURAL JUSTICE AND FAIR PLAY REQUIRE THAT THE AFFECTED PARTY IS GRANTED SUFFICIENT OPPORTUNITY OF BEING HE ARD TO CONTEST HIS CASE. THEREFORE, IN THE INTEREST OF JUSTICE, WE DEEM IT F IT AND PROPER TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE LD. CIT(A) TO ADJUDICATE THE ISSUE AFRESH ON MERITS. FOR STATISTI CAL PURPOSES, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. 7.IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 17.07.2020 SD/- SD/- ( A.T. VARKEY ) (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATE:17/07/2020 ( BISWAJIT, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. VISHAL AGARWALLA. 2. ACIT, CIRCLE TINSUKIA. 3. C.I.T(A)- 4. C.I.T.- GUWAHATI 5. CIT(DR), GAUHATIBENCH, GUWAHATI. 6. GUARD FILE. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY / DDO / H. O. O ITAT, GAUHA TI BENCH VISHAL AGARWALLA ITA NO.410/GAU/2019 ASSESSMENT YEAR:2011-12 P PP PA AA AG GG GE EE E | || | 4 44 4