Pawan Kumar Agarwal, New Delhi V. ITO, New Delhi

ITA 5175/DEL/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58454 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Next Hearing Date: 23-01-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 21-11-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR
• Assessee Lawyers: SUBODH GUPTA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 37(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: F NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND SHRI A.N.PAHUJA, ACCOUNTANT MEMBER ITA NO: 5175/DEL/2011 A.Y. : 2008-2009 SH.PAWAN KUMAR AGARWAL VS. ITO, WARD 37(1) C-33, SILVER OAK APARTMENTS NEW DELHI 109, I.P. EXTENSION NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY : SH.SUBODH GUPTA, C.A. RESPONDENT BY : SH.B.R.R.KUMAR, SR.D.R. O R D E R PER DIVA SINGH, J.M. THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R DT. 11.10.2001 OF CIT(A)-XXVIII, NEW DELHI FOR A.Y. 2008-09 WHEREI N VARIOUS GROUNDS HAVE BEEN RAISED BY THE ASSESSEE AGITATING AGAINST THE ACTION OF THE CIT(A) IN UPHOLDING THE FINDINGS AND ADDITIONS ARRI VED AT IN THE ASSESSMENT ORDER. HOWEVER AT THE TIME OF HEARING T HE PARTIES BEFORE THE BENCH WERE HEARD ON GROUND NO.1 WHICH READS AS UNDE R. 1. THE LOWER AUTHORITIES HAVE ERRED AND WERE NOT J USTIFIED IN ARBITRARY PROCEEDING WITH THE CONCLUSIONS, WITHOUT SUFFICIENTLY ALLOWING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND QUIETLY BRUSHING ASIDE THE SUBMISSIONS/EXPLANATIONS IN AN ARBITRARY MANNER WITHOUT APPRECIATING THE MATERIAL ON RECORD. 2. INVITING ATTENTION TO PAGE 1 OF THE ASSESSMENT O RDER DT. 30 TH AUGUST,2010 IT WAS SUBMITTED BY THE LD.A.R. THAT AS PER UNNUMBERED PARA 4 OF PAGE 1 OF THE ASSESSMENT ORDER THE ASSESS EE WHO IS A C.A.WAS ITA NO.5175/DEL/2011 PAGE 2 OF 4 A.Y. 2008-09 PAWAN KUMAR AGARWAL, NEW DELHI GIVEN A HEARING ON 30 TH AUGUST,2010 AND ON 6 TH SEPTEMBER,2010 HE SOUGHT TO FILE A REPLY DT. 31 ST AUGUST,2010 BEFORE THE A.O. HE WAS INFORMED THAT THE HEARING WAS COMPLETE AND THE ASSE SSMENT ORDER HAS BEEN PASSED. IT WAS HIS SUBMISSION THAT IF THE A.O . REQUIRED THE ASSESSEE TO EXPLAIN ANYTHING THEN HE WAS DUTY BOU ND TO GIVE ASSESSEE SOME TIME SO AS TO PLACE HIS EXPLANATION ON RECORD . IT WAS HIS SUBMISSION THAT EVEN IF THE A.O. WAS NOT ACCEPTING THE METHOD OF ACCOUNTING OF THE ASSESSEE AND IF HE REQUIRED THE A SSESSEE TO EXPLAIN THEN AT LEAST THE OPPORTUNITY SHOULD HAVE BEEN GIVE N. ACCORDINGLY IT WAS HIS SUBMISSION THAT THE ISSUE MAY BE RESTORED FOR A LLOWING THE ASSESSEE TO PUT FORTH ITS EXPLANATION. 3. LD.A.R. DID NOT HAVE ANY OBJECTION TO THE SAID P RAYER OF ASSESSEE. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT THESE SUBMISS IONS ADVANCED BEFORE US ARE FOUND REPRODUCED AT PARA 3 PAGE 3 OF THE I MPUGNED ORDER ALSO. IN THE LIGHT OF THE ARGUMENTS ADVANCED BY THE PARTI ES BEFORE THE BENCH AND CONSIDERING THE MATERIAL AVAILABLE ON RECORD, W E ARE OF THE VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE IT WOULD BE APPROPRIATE TO RESTORE THE ISSUE BACK TO THE FILE O F THE A.O. WITH THE DIRECTION TO AFFORD THE ASSESSEE A REASONABLE AN O PPORTUNITY OF BEING HEARD ON THE ISSUE. THE RIGHT TO BE HEARD AUDI A LTERAM PARTEM IS ONE OF THE MOST FUNDAMENTAL PRINCIPLES OF NATURAL JUSTI CE. THE AIM OF NATURAL JUSTICE IS TO SECURE JUSTICE OR TO PUT IT NEGATIVEL Y TO PREVENT THE MISUSE OF ITA NO.5175/DEL/2011 PAGE 3 OF 4 A.Y. 2008-09 PAWAN KUMAR AGARWAL, NEW DELHI JUSTICE. THE RULE OF FAIR PLAY AS CONSIDERED AND CO NTEMPLATED IN ADMINISTRATIVE LAW VESTS THE RIGHT TO BE HEARD IN A PERSON WHO APPROACHES ANY JUDICIAL/QUASI JUDICIAL OR ADMINISTR ATIVE BRANCH FOR RELIEF UNDER LAW. THE PRINCIPLES OF NATURAL JUSTICE ENSUR E THE MINIMUM PROTECTION OF THE RIGHTS OF THE PARTY AGAINST WHEN THE ARBITRARY PROCEDURES WHICH MAY BE ADOPTED BY A JUDICIAL/QUASI JUDICIAL AUTHORITY WHILE MAKING AN ORDER AFFECTING THOSE RIGHTS. SEC. 250(2) OF THE INDIAN INCOME TAX ACT, 1961 ENSHRINES THIS PRINCIPLE. THE RIGHT TO BE HEARD IS BASED ON THE COMMON LAW PRINCIPLE THAT NO ONE IS TO BE CONDEMNED UNHEARD. ACCORDINGLY FOR THE REASONS GIVEN HEREINAB OVE THE IMPUGNED ORDER IS SET ASIDE WITH THE DIRECTION THAT THE A.O. SHALL PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSES SEE A REASONABLE OPPORTUNITY OF BEING HEARD. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 23RD JANUARY ,2012 IN THE PRESENCE OF THE PARTIES ON THE DATE OF HEARING ITSE LF. SD/- SD/- (A.N. PAHUJA) (DIV A SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 23 RD JANUARY, 2012 *MANGA ITA NO.5175/DEL/2011 PAGE 4 OF 4 A.Y. 2008-09 PAWAN KUMAR AGARWAL, NEW DELHI COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT (A); 5.DR 6.GUARD FILE BY ORDER DY. REGISTRAR