SH. ABDUL HAMEED SOFI, SRINAGAR V. INCOME TAX OFFICER, SRINAGAR

ITA 48/ASR/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4974 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 16-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: UPENDER BHATT LD
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside; Audi alteram partem

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, AMRITSAR (VIRTUAL COURT) BEFORE: SHRI. N.K. SAINI, VICE PRESIDENT AND SHRI N.K. CHOUDHRY, JUDICIAL MEMBER ITA NO. 48/ASR/2019 ASSESSMENT YEAR: 2009-10 SH. ABDUL HAMID SOFI, S/O SH. GHULAM RASOOL SOFI, AMAR SINGH COLLEGE LANE, GOGJI BAGH, SRINAGAR [PAN NO: ACDPS 4128A] VS. INCOME TAX OFFICER, WARD 3(1), SRINAGAR (APPELLANT) (RESPONDENT) APPELLANT BY : SH. UPENDER BHATT (LD. C.A.) RESPONDENT BY: SH. CHARAN DASS (LD. D.R .) DATE OF HEARING: 22.09.2020 DATE OF PRONOUNCEMENT: 22.09.2020 ORDER PER N.K. CHOUDHRY, JM: THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 25-10-2018 IMPUGNED HEREIN, PASSED BY THE LD. CIT(A)-2, JALANDHAR (CAMP OFFICE AT SRINAGAR) U/S. 25 0(6) OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT), WHEREBY THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 2. AT THE OUTSET, DURING THE COURSE OF HEARING OF THIS APP EAL, IT WAS OBSERVED BY THE BENCH THAT THERE IS DELAY OF 7 D AYS IN FILLING OF THE INSTANT APPEAL, WHICH HAS BEEN EXPLAIN ED BY THE ASSESSEE BY SUBMITTING THAT THE APPEAL WAS DISPATCHED BY SPEED POST ON DATED 07-01-2019 WITH THE ASSUMPTION THA T THE ITA NO. 48/ASR/2019 ABDUL HAMID SOFI V. ITO 2 SAME WOULD BE DELIVERED BY 09-01-2019 I.E. WITHIN DU E DATE , HOWEVER DUE TO DISTURBED WEATHER CONDITIONS IN KASHMIR, RESULTED DELAY IN RECEIPT OF APPEAL BY ITAT, AMRITSAR BY 7 DAYS. LD. DR REFUTED THE CLAIM OF THE ASSESSEE. IN OUR CONSIDER ED VIEW THE DELAY AS EXPLAINED BY THE ASSESSEE SEEMS TO BE BONAFI DE AND UNINTENTIONAL, HENCE WE ARE INCLINED TO CONDONE TH E SAME, CONSEQUENTLY DELAY OF 7 DAYS IN FILLING OF THE INSTANT APPEAL STANDS CONDONED. 3. COMING TO THE MERITS OF THE CASE, FROM THE IMPUGNED O RDER IT REFLECTS THAT THOUGH THE LD. CIT(A) FIXED THE CASE FOR HEARING ON VARIOUS DATES, HOWEVER ON ALL DATES, NONE APPEARED ON BEHALF OF THE ASSESSEE AND THEREFORE THE LD. CIT(A) WHILE OB SERVING THAT THE APPELLANT/ASSESSEE IS NOT INTERESTED IN PURSUING ITS APPEAL, DISMISSED THE SAME. 4. DURING THE COURSE OF ARGUMENT IT WAS SUBMITTED BY THE ASSESSEE THAT THE ASSESSEE IS A PSYCHIATRIC PATIENT AND UNDER DEEP DEPRESSION FOR OVER THE LAST 10 YEARS AND STILL UND ER TREATMENT OF THE SAID DISEASE. THE ASSESSES BEFORE US ALSO F ILED COPIES OF MEDICAL PRESCRIPTIONS OF THE SAID TREATMENT AND FURTHER SUBMITTED THAT DUE TO THE DEVASTATING FLOODS IN THE YE AR 2014, ASSESSEES VARIOUS DOCUMENTS INCLUDING PERTAINING TO THE INCO ME TAX DESTROYED, WHICH WERE BEING RECONSTRUCTED . THE ASSE SSEE FURTHER SUBMITTED THAT DURING THE YEAR 2016 KASHMIR V ALLEY REMAINED CLOSED AFTER KILLING OF BURHAN WANI AND THER EAFTER DURING 2016-2018 THERE WAS TOTALLY UNREST IN KASHMIR R EGION AND CURFEW WAS IMPOSED IN ALL 10 DISTRICTS AND AS THE ASSESSEE ADDRESS WAS AT GOGGI BAGH, WHICH WAS ONE OF THE MOST AFF ECTED AREA DURING THE SAID PERIOD AND THEREFORE NO NOTICES F ROM THE ITA NO. 48/ASR/2019 ABDUL HAMID SOFI V. ITO 3 OFFICE OF LD. CIT(A) WERE RECEIVED AS ALLEGED IN THE IMPUGNED ORDER . 5. AS PER CLAIM OF THE ASSESSEE, WE HAVE TO CONSIDER AS TO WHETHER THE PRINCIPLES OF NATURAL JUSTICE HAVE BEEN COMPLIED WI TH IN THE INSTANT CASE BY GIVING PROPER AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE/APPELLANT . 6. IT IS TRITE TO SAY THAT EVERY PERSON HAS THE RIGHT TO SPEAK AND BE HEARD WHEN ALLEGATIONS ARE BEING PUT TOWARDS H IM OR HER . IF NO OPPORTUNITY HAS BEEN GIVEN TO THE PARTY EFFECTE D, THEN IT SHALL AMOUNT TO VIOLATIONS OF THE PRINCIPLES OF NATURAL JUSTICE, WHICH EMBEDDED IN LATIN WORDS AUDI ALTERAM PARTEM WHICH MEANS HEAR THE OTHER SIDE, OR NO MAN SHOULD BE CONDE MNED UN-HEARD OR BOTH THE SIDES MUST BE HEARD BEFORE PASSIN G ANY ORDER. THE PRINCIPLE OF AUDI ALTERAM PARTEM IS THE B ASIC CONCEPT OF THE PRINCIPLES OF NATURAL JUSTICE AND HAS NOT EVOLV ED FROM THE CONSTITUTION BUT EVOLVED THROUGH CIVILIZATION AND MAN KIND AND IS THE CONCEPT OF COMMON LAW, WHICH IMPLIES FAIRNESS, REASONABLENESS, EQUALITY AND EQUITY. IN INDIA, THE PRI NCIPLES OF NATURAL JUSTICE ARE THE GROUNDS OF ARTICLE 14 AND 21 O F THE CONSTITUTION. ARTICLE 14 ENSHRINES THAT EVERY PERSON SHOU LD BE TREATED EQUALLY. IN THE LANDMARK CASE OF MANEKA GANDHI VS. THE UNION OF INDIA (1978 AIR 597) , IT HAS BEEN HELD BY CONSTITUTION BENCH OF THE APEX COURT THAT THE LAW AND PROCEDURE MUST BE OF A FAIR, JUST AND REASONABLE KIND. THE DOCTRINE ENSURES A FAIR HE ARING AND FAIR JUSTICE TO BOTH THE PARTIES. UNDER THIS DOCTRINE, BOTH THE PARTIES HAVE THE RIGHT TO SPEAK. THE AIM OF THIS PRINCIPLE IS TO GIVE AN OPPORTUNITY TO THE PARTIES TO DEFEND THEMSELVES. BEFORE THE COURT, BOTH THE PARTIES ARE EQUAL AND AR E ENTITLEMENT OF EQUAL OPPORTUNITY TO REPRESENT THEM. IF THE ORDER IS PASS ED BY THE AUTHORITY WITHOUT ITA NO. 48/ASR/2019 ABDUL HAMID SOFI V. ITO 4 PROVIDING THE REASONABLE OPPORTUNITY OF BEING HEARD TO THE PERSON AFFECTED BY IT ADVERSELY WILL BE INVALID AND SHALL BE LIABLE TO BE SET ASIDE. 7. COMING TO THE INSTANT CASE, THOUGH IN THE IMPUGNED ORDER THE LD. CIT(A) MENTIONED THAT 10 TIMES NOTICES HAVE BE EN ISSUED TO THE ASSESSEE BUT NONE APPEARED, HOWEVER IT IS A FACT THAT FROM THE ORDER IT NOWHERE REFLECTS THAT AS TO WHETHER THE NOTICES SENT ACTUALLY SERVED UPON THE ASSESSEE OR RETURNED UNN ERVED AND THEREFORE IT CANNOT BE PRESUMED THAT PROPER NOTICE S HAVE EVER BEEN SERVED UPON THE ASSESSEE AND IN SPITE OF RECEIV ING NOTICES THE ASSESSEE DELIBERATELY NEITHER ATTENDED THE PROCEEDINGS NOR FILED ANY WRITTEN SUBMISSIONS. ON THE A FORESAID PECULIAR CIRCUMSTANCES, THE CONTENTION RAISED BY THE ASSESSE E QUA NON-SERVING OF THE NOTICES DUE TO TURMOIL AND CURFE W IN KASHMIR REGION, SEEMS TO BE BONAFIDE AND GENUINE AND T HEREFORE CLEARLY REFLECTS THAT THE ASSESSEE DID NOT GET REASONABLE OPPORTUNITY OF BEING HEARD. IT IS A SETTLED PRINCIPLE THAT THE EFFORT OF THE COU RT SHOULD NOT BE ONE OF FINDING MEANS TO PULL DOWN THE SHUTTERS OF ADJUDICATORY JURISDICTION BEFORE A PARTY WHO SEEKS JUSTICE , BUT TO SEE WHETHER IT IS POSSIBLE TO ENTERTAIN HIS GRIEVANCE IF IT IS GENUINE, THEREFORE IN OUR CONSIDERED VIEW, CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, IT WOULD BE APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND TO RE MAND BACK THE INSTANT CASE TO THE FILE OF THE LD. CIT(A) FOR DE CISION AFRESH ON MERITS, WHILE AFFORDING PROPER AND REASONABLE OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE/APPELLANT, IN ORDER TO FOLL OW THE PRINCIPLE OF NATURAL JUSTICE. ITA NO. 48/ASR/2019 ABDUL HAMID SOFI V. ITO 5 WE ALSO FEEL IT APPROPRIATE TO DIRECT THE ASSESSEE/APPELLANT TO EXTEND ITS FULL CO-OPERATION AND PARTICIPATION IN THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A) AS AND WHEN WOULD BE REQUIRED AND IN CASE OF DEFAULT, THE ASSESSEE SHALL NOT BE SUBJECTED TO ANY LENIENCY. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22.0 9.2020. SD/- SD/- ( N. K. SAINI ) (N.K.CHOUDHRY) VICE PRESIDENT JUDICIAL MEMBER DATED: 22.09.2020 GP/SR.PS. COPY OF THE ORDER FORWARDED TO: (1) APPELLANT (2) THE RESPONDENT (3) THE CIT(A) (4) THE CIT CONCERNED (5) THE SR. DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER