Anand Krishna Johri, Lucknow V. DCIT,Central Circle-I, Lucknow

ITA 438/LKW/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54785 (ITAT-LUCKNOW)
• Duration Of Justice: 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 20-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K B AJAJ
• Keywords: Opportunity of being heard; Principle of natural justice; Right to appeal

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B - BENCH, LUCKNOW. BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT AND SHRI N.K.SAINI, ACCOUNTANT MEMBER I.T.A.NOS. 438, 439, 440, 441 & 442(LKW.)/2011 A.YS.: 2004-05, 2005-06, 2006-07, 2003-04, 2002-03 RESPECTIVELY. SHRI ANAND KRISHNA JOHARI, VS. THE DY. CIT, CC.I, 14, PREM NAGAR, ASHOK MARG, LUCKNOW. LUCKNOW. PAN AAQPA4281N (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI P.K.BAJAJ, SR.D.R. DATE OF HEARING :18.8.2011 DATE OF PRONOUNCEMENT : 18.8.2011 O R D E R PER BENCH THESE FIVE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE LD.CIT(A)-III, LUCKNOW DATED 19.1.2011 RELATING TO THE ASSESSMENT YEARS 2002-03, 2003-04, 2004-05, 2005-06 & 2006-07. THESE APPEALS WERE HEARD TOGETHER AND ARE DISPOSED OF BY A COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. IN ALL THESE FIVE APPEALS, THE ASSESSEE HAS RAISED THE FOLLOWING COMMON GROUNDS OF APPEAL: 2 1. BECAUSE THE LD.CIT(A)-II ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE PENALTY OF RS.5000 U/S 27IF AS IMPOSED BY THE LD. ASSESSING OFFICER. 2. BECAUSE THERE WAS NO VALID SERVICE OF NOTICE U/S 27IF ON THE ASSESSEE. 3. BECAUSE BOTH THE LD. ASSESSING OFFICER AND THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN HOLDING THAT THERE WAS FAILURE ON THE PART OF THE ASSESSEE TO FURNISH HIS RETURN OF INCOME. 4. BECAUSE THE LD.CIT (A)-II ERRED IN NOT PROVIDING PROPER AND REASONABLE OPPORTUNITY IN LAW TO THE ASSESSEE BEFORE CONFIRMING THE ORDERS U/S 27IF AS PASSED BY THE LD. A.O. 5. BECAUSE THE LD. CIT(A)-II HAS ALREADY ALLOWED THE REGULAR APPEAL U/S 144/147 VIDE ITS ORDER DT. 31.01.2011 THEREBY DELETING THE TOTAL ADDITION OF RS.5 LACS AS WAS MADE BY THE LD. A.O. 6. BECAUSE THE ORDERS OF PENALTY U/S 271F AS PASSED BY THE LD. A,O. AND CONFIRMED BY THE CIT(A)-II ARE ERRONEOUS, MISCONCEIVED, ARBITRARY AND EXCESSIVE AND IS BAD BOTH IN LAW AND ON FACTS AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 3. AFTER CONSIDERING THE COMMON GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THESE APPEALS AND ALSO PERUSING THE ORDER OF THE LD.CIT(A), WE FIND THAT THE LD.CIT(A) HAS DECIDED THE APPEALS OF THE ASSESSEE EX PARTE. FROM THE IMPUGNED ORDER, IT IS CLEAR THAT THE LD.CIT(A) HAS NOT PROVIDED ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE APPEALS. IN OUR OPINION, THE LD.CIT(A) SHOULD HAVE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE APPEALS. IN THE CASE OF RADHIKA CHARAN BANERJEE VS. SAMBALPUR MUNICIPALITY, AIR (1979) ORISSA 69, THE HON'BLE ORISSA HIGH COURT HELD THAT A RIGHT OF APPEAL 3 WHEREVER CONFERRED INCLUDES A RIGHT OF BEING AFFORDED AN OPPORTUNITY OF BEING HEARD, IRRESPECTIVE OF THE LANGUAGE CONFERRING SUCH RIGHT. THAT IS A PART AND PARCEL OF THE PRINCIPLE OF NATURAL JUSTICE. WHERE AN AUTHORITY IS REQUIRED TO ACT IN A QUASI-JUDICIAL CAPACITY, IT IS IMPERATIVE TO GIVE THE APPELLANT AN ADEQUATE OPPORTUNITY OF BEING HEARD BEFORE DECIDING THE APPEAL. THUS, CONSIDERING THE ENTIRE FACTS OF THE PRESENT CASE, WE THINK IT PROPER TO SET ASIDE THE ORDER OF THE LD.CIT(A) IN TOTO AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO DECIDE THE APPEALS AFRESH ON MERITS IN ACCORDANCE WITH LAW AFTER AFFORDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD.CIT(A) IS ALSO DIRECTED TO DECIDE THE APPEALS PREFERABLY WITHIN THREE MONTHS FROM THE DATE OF RECEIPT OF THE ORDER. AT THE SAME TIME, WE ALSO DIRECT THE ASSESSEE TO CO-OPERATE AND ATTEND THE HEARING BEFORE THE LD.CIT(A). IN VIEW OF THE ABOVE, NO FINDINGS ARE BEING GIVEN ON MERITS. 4. IN THE RESULT, ALL THE FIVE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 18.8.2011. SD. SD. (N.K.SAINI) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT AUGUST 18TH ,2011. COPY TO THE : 1. APPELLANT 2. RESPONDENT 3. CIT(A) (4) CIT 5.DR. A.R.,ITAT, LUCKNOW. SRIVASTAVA.