M/s. Prabhat Automobiles Pvt. Ltd. , Bhilwara V. ITO,Ward-5, Bhilwara

ITA 481/JODH/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6893 (ITAT-JODHPUR)
• Duration Of Justice: 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 22-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K SINGI LD
• Assessee Lawyers: P C PARWAL LD
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside; Audi alteram partem

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI N.K.SAINI, VICE PRESIDENT AND SHRI N.K. CHOUDHRY, JUDICIAL MEMBER ITA NO.481/JODH/2018 ASSESSMENT YEAR:2009-10 M/ S. PRABHAT AUTOMOBILES PVT. LTD., LNT ROAD, KABRA GALI, BHILWARA [ PAN : AAECP 0288Q ] VS . INCOME TAX OFFICER , WARD-5, BHILWARA (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI P.C. PARWAL, LD. CA RESPONDENT BY : SHRI P.K. SINGI, LD. DR DATE OF HEARING: 01/05/2019 DATE OF PRONOUNCEMENT: 01/05/2019 ORDER PER N.K.CHOUDHRY THE INSTANT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE/APPELLANT AGAINST THE ORDER DATED 07.09.2017 IMPUGNED HEREIN PASSED BY THE LD. CIT(A)-AJMENR, WHEREBY THE ASSESEMNT ORDER DATED 24 .02.2016 PASSED U/S 143(3)/147 OF THE I.T. ACT, 1961 (HEREIN AFTER CALLED AS THE 'ACT') BY THE ITO, WARD NO.5, BHILWARA HAS BEEN AFF IRMED. 2. AT THE OUTSET, IT APPEARS FROM THE IMPUGNED ORDER THAT LD. CIT(A) HAD FIXED THE APPELLANT PROCEEDINGS ON 03 DA TES , HOWEVER, AS PER COMMENTS OF THE LD CIT(A), NO ONE HAS ATTENDED ON ANY OF THE DATE OF HEARING AND NO WRITTEN SUBMISSION HAS BEEN FILED . FROM THE ORDER, IT DOES NOT REFLECTS THAT THE NOTICES OF THE HEARING HAVE EVER BEEN SERVED UPON THE ASSESSEE OR NOT AND EVEN MODE OF SERVICE HAS NOT BEEN SPECIFIED, THEREFORE IT CANNOT BE PRESUMED THAT PROPER NOTICES HAVE BEEN SERVED UPON THE ASSESSEE AND IN SPITE OF RECEIVING NOTICES 2 ITA NO.481/JODH/2018 M/S. PRABHAT AU TOMOBILES PVT. LTD. VS. ITO THE ASSESSEE DID NOT ATTEND THE PROCEEDINGS NOR FIL ED ANY WRITTEN SUBMISSION, HENCE WE HAVE TO CONSIDER AS TO WHETHER THE PRINCIPLES OF NATURAL JUSTICE HAVE COMPLIED WITH IN THE INSTANT C ASE BY GIVING PROPER AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE AS SESSEE/APPELLANT . 3. IT IS TRITE TO SAY THAT EVERY PERSON HAS THE RIGHT TO SPEAK AND BE HEARD WHEN ALLEGATIONS ARE BEING PUT TOWARDS HIM OR HER . IF NO OPPORTUNITY HAS BEEN GIVEN TO THE PARTY EFFECTED, T HEN IT SHALL AMOUNT TO VIOLATIONS OF THE PRINCIPLES OF NATURAL JUSTICE, WHICH EMBEDDED IN LATIN WORDS AUDI ALTERAM PARTEM WHICH MEANS HEA R THE OTHER SIDE, OR NO MAN SHOULD BE CONDEMNED UN-HEARD OR BOTH T HE SIDES MUST BE HEARD BEFORE PASSING ANY ORDER. THE PRINCIPLE OF A UDI ALTERAM PARTEM IS THE BASIC CONCEPT OF THE PRINCIPLE OF NATURAL JU STICE AND HAS NOT EVOLVED FROM THE CONSTITUTION BUT EVOLVED THROUGH C IVILIZATION AND MANKIND AND IS THE CONCEPT OF COMMON LAW, WHICH IMP LIES FAIRNESS, REASONABLENESS, EQUALITY AND EQUITY. IN INDIA, THE PRINCIPLES OF NATURAL JUSTICE ARE THE GROUNDS OF ARTICLE 14 AND 21 OF THE CONSTITUTION. ARTICLE 14 ENSHRINES THAT EVERY PERSON SHOULD BE TREATED EQ UALLY. 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 REASONABL E KIND. THE DOCTRINE ENSURES A FAIR HEARING 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. I F THE ORDER IS PASSED BY THE AUTHORITY WITHOUT PROVIDING THE REASONABLE OPPORTUNITY OF BEI NG HEARD TO THE PERSON AFFECTED BY IT ADVERSELY WILL BE INVALID AND SHALL BE LIABLE TO BE SET ASIDE. 3 ITA NO.481/JODH/2018 M/S. PRABHAT AU TOMOBILES PVT. LTD. VS. ITO 4. COMING TO THE INSTANT CASE, THE PRINCIPLES OF NATU RAL JUSTICE HAVE NOT BEEN FOLLOWED, AS IT IS FUNDAMENTAL PRINCIPLE OF LAW THAT NO ONE C AN BE REMAIN UN-HEARD , THEREFORE I N THE PECULIAR FACTS OF CIRCUMSTANCES OF THE CASE, WE ARE INCLINED TO SET ASIDE THE ORDER PA SSED BY THE LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF T HE LD. CIT(A) FOR DECISION AFRESH, SUFFICE TO SAY WHILE AFFORDING PRO PER OPPORTUNITIES OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE/APPELLANT TO EXTEND I TS FULL CO- OPERATION AND PARTICIPATION IN THE APPELLATE PROCEE DINGS BEFORE THE LD. CIT(A) AS AND WHEN REQUIRED AND IN CASE OF FURTHER DEFAULT, THE ASSESSEE SHALL NOT BE SUBJECTED TO ANY LENIE NCY. 5. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE/A PPELLANT STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 01.05.2019. SD/- SD/- (N.K.SAINI) ( N.K.CHOUDHRY) VICE PRESIDENT JUD ICIAL MEMBER DATED:01/05/2019 PK/PS COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR