Mr. Qasim Qureshi, Rampur V. ITO, Rampur

ITA 4866/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74064 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2008-2009
• Appeal Filed On: 13-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F NEW DELHI) BEFORE SMT. DIVA SINGH , JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A. NO.4866/DEL/2013 ASSESSMENT YEAR : 2008-09 QASIM QUERSHI, ITO, PROP. M/S ZUM ZUM FOODS INDIA, WARD-11, PPURANA GANJ, RAMPUR. V. RAMPUR. (APPELLANT) (RESPONDENT) PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO.AABPQ AABPQ AABPQ AABPQ- -- -8627 8627 8627 8627- -- -Q QQ Q APPELLANT BY : NONE. RESPONDENT BY : MS. MEENAKSHI VOHRA, SR. DR. ORDER PER TS KAPOOR, AM: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD CIT(A) 10.4.2013. THE APPLICATION FOR ADJOURNMENT W AS FILED BY THE COUNSEL OF ASSESSEE. HOWEVER, WHILE GOING THROUGH THE STA TEMENT OF FACTS FILED BEFORE ITAT, WE FOUND THAT CASE CAN BE DI SPOSED OFF. THEREFORE, THE APPLICATION FOR ADJOURNMENT WAS REJEC TED. WE FURTHER FOUND THAT ASSESSMENT IN THIS CASE WAS COMPLETED U/S 144 OF THE ACT AND ASSESSEE COULD NOT APPEAR BEFORE LD CIT(A) DESPITE VARIOUS OPPORTUNITIES GIVEN BY LD CIT(A). AS NOTED IN HIS ORDE R WE FURTHER FIND THAT ASSESSEE WAS UNDER TREMENDOUS PRESSURE AND SOME POLICE CASE WAS FILED AGAINST HIM WHICH GOT PARTLY SETTLED ONLY O N 19.11.2010 ON THE DIRECTIONS OF ALLAHABAD HIGH COURT BUT THE MATTE R WAS STILL NOT CLOSED AND THEREFORE HE COULD NOT APPEAR BEFORE ASSESSI NG OFFICER. REGARDING APPEAL BEFORE LD CIT(A) THE ASSESSEE STATED TH AT HE HAD ITA NO4866/DEL/2013 2 HIRED A CHARTERED ACCOUNTANT WHO DID NOT APPEAR BEF ORE LD CIT(A) AND APPEARED ONLY ON 13.3.2013 AND SOUGHT FURTHER ADJOUR NMENT. HE FURTHER STATED THAT HE WAS NOT AWARE ABOUT NON ATTEND ANCE BY CHARTERED ACCOUNTANT AND THEREFORE HE WAS DEVOID OF HEARING. 2. LD DR HAD NO OBJECTION IF THE APPEAL IS REMITTED BACK TO ASSESSING OFFICER FOR RE-ADJUDICATION. 3 AUDI ALTERAM PARTEM IS ONE OF THE MOST FAMOUS AND CE LEBRATED RULE OF NATURAL JUSTICE. THE PRINCIPLES OF NATURAL JU STICE ARE THOSE WHICH HAVE BEEN LAID OUT BY THE COURTS AS BEING THE MINIMUM PROTECTION OF THE RIGHTS OF AN INDIVIDUAL AGAINST THE ARBITRARY PRO CEDURE THAT MAY BE ADOPTED BY A JUDICIAL QUASI JUDICIAL AND ADMINISTRA TIVE AUTHORITY WHILE MAKING AN ORDER AFFECTING THOSE RIGHTS. A CAREFUL PER USAL OF THE CONSISTENT JUDGMENTS OF THE APEX COURT WOULD SHOW THAT IT HAS CONSISTENTLY BEEN HELD THAT THE RULES OF NATURAL JUSTI CE ARE NOT EMBODIED RULES AND THE SAID PHRASE IS NOT AND CANNOT BE CAPABLE OF PRECISE DEFINITION. THE UNDERLYING PRINCIPLE OF NATU RAL JUSTICE EVOLVED UNDER THE COMMON LAW IS TO CHECK ARBITRARY EXERCISE O F POWER BY THE STATE OR ITS FUNCTIONARIES. ACCORDINGLY, THE PRINCIPL E BY ITS VERY NATURE IMPLIES THE DUTY TO ACT FAIRLY I.E. FAIR PLAY IN ACT ION MUST BE EVIDENT AT EVERY STAGE, FAIR PLAY DEMANDS THAT NOBODY SHALL BE CO NDEMNED UNHEARD. 4 IN THE CELEBRATED JUDGMENT OF THE APEX COURT IN T HE CASE OF AK KRAIPAK V. UNION OF INDIA (1969) 2 SCC 262, IT IS OB SERVED THAT THE AIM OF RULES OF NATURAL JUSTICE IS TO SECURE JUSTICE OR TO P UT IT NEGATIVELY TO PREVENT MISCARRIAGE OF JUSTICE. THE SAID RULES ARE MEAN S TO AN END AND NOT AN END IN THEMSELVES AND THOUGH IT IS NOT POSSIBLE TO MAKE AN EXHAUSTIVE CATALOGUE OF SUCH RULES HOWEVER, IT CAN BE READILY SAID THAT ITA NO4866/DEL/2013 3 THERE ARE TWO BASIC MAXIMS OF NATURAL JUSTICE NAMELY A UDI ALTERAM PARTEM AND NEMO JUDEX IN RE SUA. IN THE PRESENT FACTS OF THE CASE WE ARE CONCERNED WITH THE MAXIM AUDI ALTERAM PARTEM WH ICH AGAIN MAY HAVE MANY FACETS TWO OF THEM (I) NOTICE OF THE CASE T O BE MET (II) OPPORTUNITY TO EXPLAIN. THEIR LORDSHIPS HAVE CAUTIO NED THAT THESE RULES CANNOT BE SACRIFICED AT THE ALTAR OF THE ADMINISTRATI VE CONVENIENCE OR CELEBRITY. THE ASSESSEE HAS RAISED GROUND NO.1 WITH REGAR D TO OPPORTUNITY OF BEING HEARD NOT GRANTED TO HIM. THER EFORE, WE ARE INCLINED TO ACCEPT THE PRAYER OF ASSESSEE ON A CAREFUL CONSIDERATION OF THE LEGAL POSITION AND REMAINING GROUNDS ARE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO DECIDE T HE SAME IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONAB LE OPPORTUNITY OF BEING HEARD. LOOKING AT THE FACTS OF THE PRESENT CASE, WE DEEM IT APPROPRIATE TO ADD THAT IT IS HOPED THAT THE ASSESSEE UTILIZES THE OPPORTUNITY SO GRANTED RESPONSIBLY AND MEA NINGFULLY PARTICIPATING IN LETTER AND SPIRIT IN THE PROCEEDIN GS AS THE REMEDIES AVAILABLE TO LAW ARE NOT TO BE ABUSED AND COURTS TAKE A VERY SERIOUS VIEW WHERE OPPORTUNITIES SO GRANTED ARE MIS-UTILIZED. 5 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. 6 ORDER PRONOUNCED IN THE OPEN COURT ON 4TH DAY OF FEBRUARY, 2014. SD/- SD/- (DIVA SINGH) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DT.04.02.2014. HMS ITA NO4866/DEL/2013 4 COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. (ITAT, NEW DELHI). DATE OF HEARING 4.2.2014 DATE OF DICTATION 4.2.2014 DATE OF TYPING 4.2.2014 DATE OF ORDER SIGNED BY 4.2.2014 BOTH THE MEMBERS & PRONOUNCEMENT. DATE OF ORDER UPLOADED ON NET & SENT TO THE BENCH CONCERNED.