Shri Badri Prasad, Bairagh chichli, Kolar Road, Bhopal V. Income Tax Officer, 2 (2), Bhopal, Bhopal

ITA 459/Ind/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2169 (ITAT-INDORE)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 19-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B; ARPITA GUAD CAS; ANIL KAMAL GAUD
• Keywords: Opportunity of being heard; Capital receipt
• Section: 28; 144

Judgement Text

SHRI BADRI PRASAD V ITO 2(2), BHOPAL ITA NO.459/IND /2017 A.Y. 2008-09 PAGE 1 OF 3 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE .. , ..!,#$ # % BEFORE SHRI C.M. GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER SHRI BADRI PRASAD, BAIRAGH CHICHI, KOLAR ROAD, BHOPAL V. INCOME TAX OFFICER, 2(2), BHOPAL & / APPELLANT ()& / RESPONDENT . # . ./ PAN: CUYPP1138 E * !+,-$ / DATE OF HEARING 26.09.2017 ./012 -$ / DATE OF PRONOUNCEMENT 26.09.2017 ORDER PER O.P. MEENA, AM. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-1, BHOPAL [IN SHORT REFERRED TO AS THE CIT (A)] DATED 27.03.2017 PERTAINING TO A SSESSMENT YEAR 2008-09. . . ./ I.T.A. NO.459/IND/2017 ! +2 / ASSESSMENT YEAR: 2008-09 &- # / APPELLANT BY SHRI ANIL KAMAL GAUD & ARPITA GUAD, CAS ()&- # / RESPONDENT BY SHRI LALCHAND, CIT DR SHRI BADRI PRASAD V ITO 2(2), BHOPAL ITA NO.459/IND /2017 A.Y. 2008-09 PAGE 2 OF 3 2. THE ASSESSEE HAS TAKEN AS MANY AS FOUR GROUNDS OF APPEAL, HOWEVER, GROUND NO.1 & 2 RELATES THAT THE AO HAS ER RED IN MAKING ASSESSMENT ORDER U/S 144 OF THE ACT WITHOUT CONSIDE RING THE MATERIAL FACT AND AFFORDABLE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. SIMILARLY, CIT(A) HAS ALSO ERRED IN DISMISSING THE APPEAL WITHOUT GIVING PROPER AND EFFECTIVE OPPORTUN ITY BEING HEARD TO THE APPELLANT AND WITHOUT PREJUDICE BY CONFIRMIN G THE ADDITION OF RS.40,00,000/- MADE ON ACCOUNT OF ALLEGATION OF REC EIPTS WHICH ARE CAPITAL RECEIPTS WITHIN THE PROVISION OF SECTION 2( 14)(III) OF THE ACT. 3 . AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE S UBMITTED THAT THE ASSESSMENT WAS FRAMED U/S 144 OF THE ACT AND WI THOUT ANY ALL FARINESS HE DOES NOT HAVE ANY OBJECTION TO THE ISSU E RESTORED TO THE FILE OF THE AO FOR CONSIDERATION. 4 . THE LD. DR CONCURRED WITH THE SUBMISSIONS OF THE LD. COUNSEL. 5 . WE HAVE HEARD THE RIVAL CONTENTION OF BOTH THE PA RTIES AND WE FIND THAT NO PROPER OPPORTUNITY BEING HEARD WAS ALL OWED TO THE ASSESSEE BY THE AO AS WELL AS CIT(A). THE PRINCIPLE OF AUDIALTERMPARTEM RULE IS THE BASIC PRINCIPLES OF NA TURAL JUSTICE, EXPRESSION, THE AUDIALTRERMPARTEM IMPLIES THAT A P ERSON MUST BE GIVEN OPPORTUNITY OF BEING HEARD. THIS PRINCIPLE I S A REQUIREMENT IN THE EVERY CIVILIZED SOCIETY, THE RIGHT TO NOTICE, T HE RIGHT TO PRESENT THE CASE AND RIGHT TO REBUT WITH EVIDENCE, RIGHT TO CROSS EXAMINATION, RIGHT TO LEGAL REPRESENTATION, RESTOR E EVIDENCE TO PARTY AND REASONABLE DECISION OF SPEAKING ORDERS IS MUST AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF MENAKA GANDHI V UNION OF SHRI BADRI PRASAD V ITO 2(2), BHOPAL ITA NO.459/IND /2017 A.Y. 2008-09 PAGE 3 OF 3 INDIA. THEREFORE, WE ARE OF THE VIEW THAT THE ASSE SSEE MUST BE GIVEN ONE MORE OPPORTUNITY TO REPRESENT HIS CASE. THEREFORE, IN EXERCISE OF POWER CONFERRED IN SECTION 28 OF THE T RIBUNAL RULES WE RESTORE THE ENTIRE APPEAL WITH ENTIRE ISSUE TO THE FILE OF THE LD.AO FOR DENOVO CONSIDERATION MAKING AS FRESH ASSESSMENT AFT ER ALLOWING THE ASSESSEE PROPER OPPORTUNITY OF BEING HEARD IN ACCOR DANCE WITH THE LAW. NEVERTHELESS TO MENTION THAT THE ASSESSEE WIL L COOPERATE IN THE ASSESSMENT PROCEEDINGS AND FILE NECESSARY EVIDENCES ON WHICH HE WANTS TO BE RELIED UPON. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSE. THE ORDER PRONOUNCED IN THE OPEN COURT ON 26.09.201 7 SD/- SD/- ( C.M. GARG) (O.P. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 26 TH SEPTEMBER, 2017 COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUA RD FILE. BY ORDER ASSISTANT REGISTRAR, INDORE