Zed Laboratories Ltd, Patna V. DCIT, C.Circle-2, Patna

ITA 44/PAT/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9622 (ITAT-PATNA)
• Duration Of Justice: 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 20-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAU SHIK KUMAR DAS
• Assessee Lawyers: K N PRASAD; SHIKESH JHA ADV S
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PATNA BENCH, PATNA BEFORE SH. N. K. SAINI, AM AND SH. AMIT SHUKLA , JM ITA NO. 44 /PAT. /2017 : ASSTT. YEAR : 2004 - 05 M/S ZED LABORATORIES LTD., ROAD NO. 7, RAJENDRA NAGAR, PATNA VS DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE CIRCLE - 2 , PATNA (APPELLANT) (RESPONDENT) PAN NO. A A CCZ4201L ASSESSEE BY : SH. K. N. PRASAD & SH. SHIKESH JHA , ADV S . REVENUE BY : SH. KAUS HIK KUMAR DAS, SR. DR DATE OF HEARING : 09 .03 .201 8 DATE OF PRONOUNCE MENT : 09 .0 3 .201 8 ORDER PER N. K. SAINI, AM : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 12.01.2017 OF LD. CIT( A ) - 3 , PATNA . 2 . FO LLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. FOR THAT THE GROUNDS OF APPEAL HERETO ARE WITHOUT PREJUDICE TO ONE ANOTHER. 2. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) IS NOT JUSTIFIED IN HOLDING THAT THE APPELLANT IS NOT IN TERESTED TO PROSECUTE THE APPEAL. THE APPELLANT ALWAYS APPEARED AND COMPLY THE STATUTORY NOTICES. 3. FOR THAT MOREOVER, THE LEARNED CIT HAS ALSO COMMITTED GROSS ERRORS OF LAW IN NOT GIVING PROPER TIME WHICH IS VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. 4 . FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) HAS ALSO COMMITTED GROSS ERROR IN NOT ADJUDICATE GROUNDS OF APPEAL ON MERIT. ITA NO . 44 /PAT. /2017 ZED LABORATORIES LTD. 2 5. FOR THAT THE APPELLANT CARVES LEAVE TO URGE, ADD OR ALTER ANY OTHER GROUND OR GROUNDS AT THE TIME OF HEARING. 3 . FROM AB OVE GROUNDS, IT IS GATHERED THAT THE MAIN GRIEVANCE OF THE ASSESSEE RELATES TO THE DISMISSAL OF THE APPEAL BY THE LD. CIT(A) EX - PARTE IN LIMINE. 4 . FACTS OF THE CASE IN BRIEF ARE THAT THE AO LEVIED THE PENALTY U/S 271B OF THE INCOME TAX ACT, 1961 AMOUNTING TO RS.77,600/ - VIDE ORDER DATED 08.05.2007. AGAINST THE SAID ORDER, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A) WHO DISMISSED THE APPEAL EX - PARTE IN LIMINE. 5 . NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO OPPORTUNITY OF BEING HEAR D WAS GIVEN. 6. IN HIS RIVAL SUBMISSIONS, THE LD. SR. DR SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). 7. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE LD. CIT(A) PASSED THE EX - PARTE ORDER AND DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE WITHOUT DISCUSSING THE ISSUE ON MERIT AND THE RELEVANT OBSERVATIONS OF THE LD. CIT(A) READ AS UNDER: 3. FINAL NOTICE FOR COMPLIANCE WAS ISSUED ON 30.11.2016 REQUIRING THE APPELLANT TO REPLY BY 12.12.2016. IN THE FINAL NOTICE OF HEARING, IT WAS MENTIONED SPECIFICALLY THAT IN CASE OF NON - COMPLIANCE, THE APPEAL WILL BE DECIDED AS IF THE APPELLANT HAS NO I NTEREST IN THE APPEAL FILED. IT IS EVIDENT FROM THE RECORDS THAT SUFFICIENT OPPORTUNITIES OF BEING HEARD HAVE ALREADY BEEN ALLOWED TO THE APPELLANT. ITA NO . 44 /PAT. /2017 ZED LABORATORIES LTD. 3 IT IMPLIES THAT APPELLANT IS NOT INTERESTED TO PROSECUTE THE APPEAL. HENCE, THE APPEAL FILED BY THE APPELLA NT IS LIABLE TO BE DISMISSED FOR NON - PROSECUTION. 8. FROM THE AFORESAID OBSERVATIONS, IT IS CRYSTAL CLEAR THAT THE LD. CIT(A) SIMPLY STATED THAT THE NOTICE OF HEARIN G WAS ISSUED TO THE ASSESSEE. NOWHERE , IT IS BROUGHT ON RECORD THAT THE SAID NOTICE FOR HEARING WAS SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM. WE, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS OF THE PRESENT CASE, DEEM IT APPROPRIATE TO SET ASIDE THIS ISSUE BACK TO THE FILE OF THE LD. CIT(A ) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PR ONOUNCED IN THE COURT ON 09 /03/2018) SD/ - SD/ - ( AMIT SHUKLA ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 09 /0 3 /2018 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CI T 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR