SHRI VIKRAM DESAI HUF, Indore V. The ACIT 5(1), Indore

ITA 419/IND/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91833 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 1 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 28-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE (SINGLE MEMBER CASE) BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER I.T.A.NO.419/IND/2014 A.Y. : 2008-09 SHRI VIKRAM DESAI HUF , ACIT, PRINCESS EMPIRE, 12, RACE COURSE ROAD, INDORE. VS. 5(1), INDORE. APPELLANT RESPONDENT PAN NO. AAAHV6658R APPELLANT BY : SHRI PANKAJ SHAH, C. A. RESPONDENT BY : SHRI R.A.VERMA, SR. DR DATE OF HEARING : 30 . 0 6 .201 5 DATE OF PRONOUNCEMENT : 30. 0 6 .201 5 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-II, INDORE, DATED 28.02.2014 FOR THE ASS ESSMENT YEAR 2008-09. -: 2: - 2 GROUND NO. I : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) II (CIT(A)) ERRED IN THAT THE LD. CIT(A) ERRED IN DISMISSING THE APPEAL OF THE ASSESSEE FOR NON PROSECUTION AND THEREBY CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER. 2. HE FAILED TO APPRECIATE AND OUGHT TO HAVE HELD THA T THE AUTHORIZED REPRESENTATIVE OF APPELLANT HAD VISITED THE OFFICE OF CIT(A) ON THE DATE OF HEARING WHERE IT WAS INFORMED THAT HON'BLE CIT(A) IS NOT IN THE OFFICE FOR THE DAY. 3. ACCORDINGLY, IT IS PRAYED THAT THE ORDER OF LD. CI T(A) BE SET ASIDE. 2. THE SHORT FACTS OF THE CASE ARE AS UNDER. 3. THE APPEAL WAS FIXED FOR HEARING ON 24.07.2012 T HROUGH A DULY SERVED NOTICE DATED 13.07.2012 WHEN NO COMPL IANCE WAS MADE. THE CASE WAS AGAIN FIXED FOR HEARING ON 3 0.01.2014 THROUGH NOTICE DATED 20.01.2014, WHEN THE ASSESSEE S COUNSEL -: 3: - 3 APPEARED AND SOUGHT FOR ADJOURNMENT. THE CASE WAS ADJOURNED FOR HEARING ON 18.02.2014 AND THEREAFTER THE CASE WAS ADJOURNED ON 28.02.2014. THE ASSESSEE OR HIS CO UNSEL DID NOT REMAIN PRESENT. THEREFORE, THE LD. CIT(A) HAS D ISMISSED THE APPEAL OF THE ASSESSEE. 4. DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT ON THE DAT E OF HEARING, THE AUTHORIZED REPRESENTATIVE HAS VISITED THE OFFICE OF LD. COMMISSIONER OF INCOME-TAX (APPEALS) ON THAT DA Y AND ON THAT DAY, IT WAS INFORMED THAT LD. CIT(A) IS NOT IN OFFICE. BUT, THE ASSESSEE RECEIVED THE ORDER AS APPEAL IS DISMIS SED. THEREFORE, HE HAS PRAYED TO RESTORE THIS APPEAL. 5. THE LD. SENIOR D.R. DID NOT OBJECT TO IT. 6. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE P ARTIES. 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 OPPORTUNITY TO DEFEND H IMSELF. THIS PRINCIPLE IS SINE QUA NON OF EVERY CIVILIZED SOCIETY. THE RIGHT TO NOTICE, RIGHT TO PRESENT CASE AND EVIDENCE , RIGHT TO -: 4: - 4 REBUT ADVERSE EVIDENCE, RIGHT TO CROSS EXAMINATION, RIGHT TO LEGAL REPRESENTATION , DISCLOSURE OF EVIDENCE TO PA RTY, REPORT OF ENQUIRY TO BE SHOWN TO THE OTHER PARTY AND REASONED DECISIONS OR SPEAKING ORDERS. I FIND THAT THE RIGHT OF HEARIN G IS DECIDED BY THE HON'BLE SUPREME COURT IN THE CASE OF MANEKA GANDHI VS. UNION OF INDIA, WHEREIN HON'BLE SUPREME COURT H AS HELD THAT RULE OF FAIR HEARING IS NECESSARY BEFORE PASSI NG ANY ORDER. I FIND THAT IT IS PRE-DECISION HEARING STANDARD OF NORM OF RULE OF AUDI ALTERM PARTEM. I FIND THAT IN THIS INSTANT CASE, THE ASSESSEE WAS NOT GIVEN PROPER HEARING. THEREFORE, I AM OF THE VIEW THAT THE ASSESSEE MUST BE GIVEN ONE MORE OPPOR TUNITY OF HEARING AND TO REPRESENT HIS CASE. THEREFORE, I ALL OW THIS APPEAL. THE ASSESSEE IS DIRECTED TO REMAIN PRESENT BEFORE THE LD. CIT(A) WITHIN 2 MONTHS AFTER THE RECEIPT OF THI S ORDER. THE LD. CIT(A) SHOULD DECIDE THE APPEAL AFTER GIVING DU E OPPORTUNITY OF HEARING TO THE ASSESSEE AS PER LAW. -: 5: - 5 7. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 30 TH JUNE, 2015. SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED :30 TH JUNE, 2015. CPU* 306