SHRI DAULATRAM INDUSTRIES, Bhopal V. THE ACIT 3(1), Bhopal

ITA 457/IND/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5708 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-07-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 12-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Assessee Lawyers: S S DESHPANDE
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER M/S.DAULATRAM INDUSTRIES,10-E, INDUSTRIAL ESTATE, GOVINDPURA, BHOPAL PAN: AAAFD7012M VS. ACIT, 3(1), BHOPAL APPELLANT RESPONDENT APPELLANTS BY SHRI S.S.DESHPANDE, C. A. RESPONDENT BY SHRI MOHD. JAVED, SR.DR DATE OF HEARING 28.07.2016 DATE OF PRONOUNCEMENT 28.07.2016 O R D E R PER O.P. MEENA, ACCOUTANT MEMEBR: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS), BHOPAL-2, [HE REINAFTER REFERRED TO AS THE CIT(A)] DATED 02.03.2015 AND PER TAINS TO ASSESSMENT YEAR 2010-11 AS AGAINST APPEAL DECIDED I N ASSESSMENT ORDER PASSED U/S 143(3) OF THE INCOME-TA X ACT, 1961(HEREINAFTER REFERRED AS THE ACT) DATED 28.0 3.2013 OF ACIT, 3(1), BHOPAL [HEREINAFTER REFERRED TO AS THE AO]. I.T.A. NO. 457 /IND/2015 ASSESSMENT YEAR: 2010 - 11 M/S.DAULATRAM INDUSTRIES, BHOPAL VS. ACIT,3(1), BHO PAL I.T.A.NO. 457/IND/2015 ASSESSMENT YEAR 2010-11. 2 2 2. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL :- 1. THAT THE CIT(A)-II WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS. 1,00,00,000/- MADE BY THE APPELLAN T ASSESSEE TO THE RETURNED INCOME ON ACCOUNT OF SO CALLED EXCESS IN STOCK AS DECLARED TO THE BANK COMPARED TO THAT REPORTED IN THE AUDITED BALANCE SHEET ON ESTIMATED BASIS; WHEN IT WAS PROVED BEFORE THE AO THAT THERE WAS NO DIFFERENCE IN QUANTITY OF MATERIALS REPORTED TO THE BANK. THE OBSERVATIONS OF THE LD. CIT(A) ARE BASED ON AN INCORRECT APPRECIATI ON OF DOCUMENTS ON RECORD WITH AO, THE FACT THAT THE DOCUMENTS RELIED UPON BY THE AO WERE NOT MADE AVAILABLE TO THE APPELLANT ASSESSEE DURING THE ASSESSMENT PROCEEDINGS HAS BEEN OVERLOOKED BY THE LD. CIT(A) . 2. THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN NOT GIVING THE APPELLANT ASSESSEE A FULL AND PROPER OPPORTUNITY OF BEING HEARD IN THE MATTER. 3. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT NO PROPER OPPORTUNITY OF HEARING WAS AFFORDED TO THE A SSESSEE. THE LD. CIT(A) WAS NOT JUSTIFIED IN REJECTING THE A PPEAL OF THE ASSESSEE EX-PARTE. THE DOCUMENTS RELIED BY THE AO W ERE NOT MADE AVAILABLE TO ASSESSEE. THE LD. COUNSEL PRAYE D THAT THE APPEAL MAY BE RESTORED TO THE FILE OF LD. CIT(A ) AND AN OPPORTUNITY OF HEARING MAY KINDLY BE GIVEN. 4. THE LD. SENIOR D.R. RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. WE FIND THAT THE LD. CIT(A) HAS SIMPLY DIS MISSED THE M/S.DAULATRAM INDUSTRIES, BHOPAL VS. ACIT,3(1), BHO PAL I.T.A.NO. 457/IND/2015 ASSESSMENT YEAR 2010-11. 3 3 APPEAL FOR NON-APPEARANCE BY THE ASSESSEE ON VARIOU S DATES BY APPLYING MULTIPLAN INDIA LIMITED, 38 ITD 320 (DE L). 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 HIMSELF. THIS PRINCIPLE IS SINE QUA NON OF EVERY CIVILIZED SOCIETY. THE RIGHT TO NOTICE, RIGHT TO PRESENT CAS E AND EVIDENCE, RIGHT TO REBUT ADVERSE EVIDENCE, RIGHT TO CROSS EXAMINATION, RIGHT TO LEGAL REPRESENTATION, DISCLOS URE OF EVIDENCE TO PARTY, REPORT OF ENQUIRY TO BE SHOWN TO THE OTHER PARTY AND REASONED DECISIONS OR SPEAKING ORDERS. WE FIND THAT THE RIGHT OF HEARING IS DECIDED BY THE HON'BLE SUPREME COURT IN THE CASE OF MANEKA GANDHI VS. UNION OF IND IA, WHEREIN HON'BLE SUPREME COURT HAS HELD THAT RULE OF FAIR HEARING IS NECESSARY BEFORE PASSING ANY ORDER. WE F IND THAT IT IS PRE-DECISION HEARING STANDARD OF NORM OF RULE OF AUDI ALTERAM PARTEM. WE FIND THAT IN THIS INSTANT CASE, THE ASSESSEE WAS NOT GIVEN PROPER HEARING. THEREFORE, W E ARE OF THE VIEW THAT THE ASSESSEE MUST BE GIVEN ONE MORE OPPORTUNITY OF HEARING AND TO REPRESENT HIS CASE. T HEREFORE, WE RESTORE THIS APPEAL TO THE FILE OF LD. CIT(A) FO R ALLOWING M/S.DAULATRAM INDUSTRIES, BHOPAL VS. ACIT,3(1), BHO PAL I.T.A.NO. 457/IND/2015 ASSESSMENT YEAR 2010-11. 4 4 PROPER OPPORTUNITY OF BEING HEARD IN ACCORDANCE WIT H LAW. NEVERTHELESS TO MENTION THAT THE ASSESSEE WILL COOP ERATE IN THE APPEAL PROCEEDINGS AND FILE NECESSARY EVIDENCES ON WHICH HE WANTS TO RELY UPON. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON THE 28TH JULY, 2016. SD/- (D.T.GARASIA) JUDICIAL MEMBER SD/- (O.P.MEENA) ACCOUNTANT MEMBER DATED :28TH JULY, 2016. CPU* COPY TO: 1. THE ASSESSEE. 2. THE A.O. CONCERNED. 3. THE LD. PCIT CONCERNED 4. THE LD. CIT(A) 5. THE D.R., INDORE 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR I.T.A.T., INDORE