Sh. Ashok Kumar, Khanna V. ITO, Khanna

ITA 449/CHANDI/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 95513 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 27-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJINDER KAUR
• Assessee Lawyers: HARI OM ARORA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MRS. RANO JAIN, ACCOUNTANT MEMBER ITA NO.449/CHD/2015 ASSESSMENT YEAR:2009-10 SH. ASHOK KUMAR, VS. ITO PROP. M/S ANANT JEWELLERS WARD I SARAFA BAZAR KHANNA KHANNA PAN NO. AIKPK6743Q (APPELLANT) (RESPONDENT) APPELLANT BY : SH. HARI OM ARORA RESPONDENT BY : SH. RAJINDER KAUR DATE OF HEARING : 24/08/2015 DATE OF PRONOUNCEMENT : 27/08/2015 ORDER PER RANO JAIN A.M. THIS IS AN APPEAL DIRECTED AGAINST THE ORDER OF CIT (A)-2, LUDHIANA DT. 16/03/2015, CONFIRMING THE PENALTY AMOUNTING TO RS. 51,070/- LEVIED BY A.O. U/S 271(1)(C) OF THE ACT. THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE EXPARTE ON ACCOUNT OF ASSESSEES NON APPEARANCE BEF ORE HIM. 2. THE REASON FOR FRAMING SUCH EXPARTE ORDER IS GIV EN AT PAGE 2, PARA 3 OF THE IMPUGNED ORDER. IT IS STATED THEREIN THAT A NOT ICE FOR HEARING WAS ISSUED ON 13.02.2015 FIXING THE CASE FOR 04/03/2015. NOTICE W AS SENT TO THE ADDRESS M/S ANAND JEWELLERS, SARAFA BAZAR, KHANNA. HOWEVER, THE SAID NOTICE CAME BACK UNSERVED WITH THE REMARK LEFT. IN SUCH CIRCUMSTAN CES THE LD. CIT(A) PASSED THE EXPARTE ORDER. IN THE BACKGROUND OF THESE FACTS, RE LYING ON THE DECISION OF 2 HONBLE SUPREME COURT IN THE CASE OF B.N. BHATTACHA RGEE, 118 ITR 461 (SC), CIT(A) PASSED AN EXPARTE ORDER. 3. BEFORE US THE LD. COUNSEL OF THE ASSESSEE VEHEME NTLY ARGUED THAT THE SAID ACTION OF THE LD. CIT(A) WAS NOT JUSTIFIED AND ILLEGAL. IT WAS CONTENDED THAT THE ORDER WAS PASSED WITHOUT CONSIDERING THE GROUND S OF APPEAL ON MERITS. 4. LD. DR PLACED RELIANCE ON THE ORDER OF AO AS WEL L AS THE LD.CIT(A). 5. WE HAVE HEARD THE RIVAL CONTENTION AND PERUSED T HE MATERIAL ON RECORD. IT CAN BE SEEN FROM THE ORDER OF THE CIT(A) THAT HE HAS PASSED AN EXPARTE ORDER WITHOUT GIVING ANY FINDING ON THE MERITS OF THE CAS E. ON PAGE 3 PARA 5 OF THE ORDER CIT(A) HAS MENTIONED THE CIRCUMSTANCES UNDER WHICH THE AO HAS LEVIED PENALTY BUT HE HAS NOT GIVEN HIS OWN FINDINGS ON TH E SAME. 6. AS PER SECTION 250(6) OF THE INCOME TAX ACT, 196 1, THE CIT(A) SHOULD DISPOSE OF THE APPEAL IN WRITING AND SHALL STATE TH E POINTS FOR DETERMINATION OF THE DECISION THEREON AND THE REASONS FOR THE DECISI ON. THEREFORE, THE MANDATE OF THE STATUTE IS THAT THE CIT(A) HAS TO GIVE HIS F INDINGS ON MERITS ON THE BASIS OF MATERIAL AVAILABLE ON RECORD WHILE DISPOSING OF THE APPEAL. THERE IS NO EXCEPTION PROVIDED FOR AN EXPARTE ORDER. A REASONED ORDER BASED ON THE MERITS OF THE CASE IS A PRE-REQUISITE FOR DISPOSAL OF AN A PPEAL. THIS IS ALSO ESSENTIAL AS THE WELL RECOGNIZED PRINCIPLE OF THE JUDICIAL REVIEW IS NOT POSSIBLE WITHOUT THE EXISTENCE OF A WELL REASONED ORDER. A QUASI JUDICIA L AUTHORITY IS EXPECTED TO DELIVER JUSTICE IN ALL CIRCUMSTANCES AND NOT TO BE WEIGHED DOWN BY THE RIGORS OF PROCEDURE AND ANY OTHER TECHNICALITY. THE RELIANCE PLACED BY CIT(A) ON THE JUDGMENT OF THE APEX COURT IN THE CASE OF B.N. BHAT TACHARJEE (SUPRA) IS ALSO MISPLACED AS IN THAT CASE PRINCIPLE LAID DOWN WAS T HAT WORDS PREFERRED IN APPEAL MEANS MORE THAN FORMALLY FILING IT BUT EFFE CTIVELY PURSUING IT. 3 7. IN THE PRESENT CASE, JUST ON THE RECEIPT BACK OF ONE NOTICE, CIT(A) PASSED AN EXPARTE ORDER WITHOUT GIVING ANY FINDINGS ON MER ITS. THIS ALSO DEFEATS THE PURPOSE ENSHRINED IN THE PRINCIPLE OF NATURAL JUSTI CE, WHEREBY BOTH THE PARTIES SHOULD BE GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD . 8. IN VIEW OF THE ABOVE, THE ORDER PASSED BY THE CI T(A) IS ERRONEOUS AND MISCONCEIVED IN THE ABSENCE OF ANY FINDING ON MERIT S. WE THEREFORE, SET ASIDE THE ORDER OF CIT(A) IN TOTO AND REMAND THE MATTER T O HIM WITH THE DIRECTION TO DECIDE THE SAME AFRESH IN ACCORDANCE WITH LAW. WE F URTHER DIRECT HIM TO DECIDE THE MATTER EXPEDITIOUSLY. NEEDLESS TO SAY TH AT ASSESSEE SHOULD BE GIVEN A FAIR OPPORTUNITY TO REPRESENT ITS CASE. 9. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27/08/2015 SD/- SD/- (BHAVNESH SAINI) (RANO JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 27/08/2015 AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR