SHRI MANISH KOTHARI, Indore V. The ACIT 5(1), Indore

ITA 519/IND/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91831 (ITAT-INDORE)
• Duration Of Justice: 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 15-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 30-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y I MEHTA
• Assessee Lawyers: MANISH VAIDYA CAS
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, J.M. AND SHRI B.C.MEENA, A.M. I.T.A.NO.519/IND/2014 A.Y. : 2008-09 SHRI MANISH KOTHARI, 302, REGAL REGENCY, ACIT, 5(1), N28-29, SAKET NAGAR, INDORE. VS. INDORE. APPELLANT RESPONDENT PAN NO. AJFPK6484Q APPELLANT BY : SHRI AJAY TULSIYAN AND SHRI MANISH VAIDYA, CAS RESPONDENT BY : SHRI Y.I.MEHTA, DR DATE OF HEARING : 15 . 0 6 .201 5 DATE OF PRONOUNCEMENT : 15. 0 6 .201 5 -: 2: - 2 O R D E R PER GARASIA, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-II, INDORE, DATED 31.03.2014 FOR THE ASS ESSMENT YEAR 2008-09. 2. FOLLOWING GROUNDS HAVE BEEN TAKEN BY THE ASSESSE E :- 1. THAT THE LD. CIT(A) ERRED IN DISMISSING THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION AND THEREBY CONFIRMING THE PENALTY U/S 271(1)(C) LEVIED BY THE LD. AO. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE SAID DISMISSAL OF APPEAL IS WRONG AND BAD IN LAW AND IT IS PRAYED THAT THE ORDER OF THE LD. CIT(A) MAY VERY KINDLY BE SET ASIDE. 2. AS AN ALTERNATE AND WITHOUT PREJUDICE TO ABOVE IT IS PRAYED THAT THE LD. CIT(A) MAY VERY KINDLY BE DIRECTED TO GIVE ANOTHER OPPORTUNITY TO THE ASSESSE E AND PASS THE ORDER ON MERITS OF THE CASE. -: 3: - 3 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. AO ERRED IN LEVYING PENALTY U/S 271(1)(C) OF RS. 5,20,000/- AND IT IS PRAYED THAT T HE SAME MAY VERY KINDLY BE DELETED NOW. 3. THE CASE WAS INITIALLY FIXED FOR HEARING ON 31.7 .2013 THROUGH NOTICE DATED 18.7.2013 DULY SERVED UPON THE ASSESSEE ON 22.07.2013, WHEN NO COMPLIANCE WAS MADE. THE LD. COUNSEL FOR THE ASSESSEE SOUGHT ADJOURNMENT AND THE CASE WAS ADJOURNED FOR HEARING ON 14.08.2013. THE LD. CO UNSEL APPEARED ON THE DATE FIXED BUT THE CASE WAS AGAIN A DJOURNED ON THE REQUEST OF THE COUNSEL. SUBSEQUENTLY THE CAS E WAS AGAIN FIXED FOR HEARING ON 17.10.2013 & 19.2.2014 T HROUGH DULY SERVED NOTICES DATED 4.10.2013 AND 30.01.2014 RESPECTIVELY. THE CASE WAS AGAIN FIXED FOR HEARING ON 18.03.2014, WHEN NO COMPLIANCE WAS MADE. 4. DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT THE OPPORT UNITY OF HEARING WAS NOT GIVEN TO THE ASSESSEE. THEREFORE, HE PRAYED -: 4: - 4 THAT ONE OPPORTUNITY MAY BE GIVEN AND THE APPEAL MA Y BE RESTORED TO THE LD. CIT(A). 5. THE LD. SENIOR D.R. DID NOT OBJECT TO IT. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. WE FIND THAT THE LD. CIT(A) HAS SIMPLY DISMISSED TH E APPEAL BY APPLYING MULTIPLAN INDIA LIMITED, 38 ITD 320. THE PRINCIPLE OF AUDI ALTERAM PARTEM IS THE BASIC CONCEPT OF NATURAL JUSTICE. THE EXPRESSION AUDI ALTERAM PARTEM IMPLIES THAT A PERSON MUST BE GIVEN OPPORTUNITY TO DEFEND HIMSELF. THIS P RINCIPLE IS SINE QUA NON OF EVERY CIVILIZED SOCIETY. THE RIGHT TO NOTICE, RIGHT TO PRESENT CASE AND EVIDENCE, RIGHT TO REBUT ADVERSE EVIDENCE, RIGHT TO CROSS EXAMINATION, RIGHT TO LEGA L REPRESENTATION, DISCLOSURE OF EVIDENCE TO PARTY, RE PORT OF ENQUIRY TO BE SHOWN TO THE OTHER PARTY AND REASONED DECISIONS OR SPEAKING ORDERS. WE FIND THAT THE RIGHT OF HEARI NG IS DECIDED BY THE HON'BLE SUPREME COURT IN THE CASE OF MANEKA GANDHI VS. UNION OF INDIA, WHEREIN HON'BLE SUPREME COURT H AS HELD THAT RULE OF FAIR HEARING IS NECESSARY BEFORE PASSI NG ANY ORDER. WE FIND THAT IT IS PRE-DECISION HEARING STANDARD OF NORM OF RULE -: 5: - 5 OF AUDI ALTERAM PARTEM. WE FIND THAT IN THIS INSTANT CASE, THE ASSESSEE WAS NOT GIVEN PROPER HEARING. THEREFORE, W E ARE OF THE VIEW THAT THE ASSESSEE MUST BE GIVEN ONE MORE O PPORTUNITY OF HEARING AND TO REPRESENT HIS CASE. THEREFORE, WE ALLOW THIS APPEAL. THE ASSESSEE IS DIRECTED TO REMAIN PRESENT BEFORE THE LD. CIT(A) WITHIN 2 MONTHS AFTER THE RECEIPT OF THI S ORDER. THE LD. CIT(A) SHOULD DECIDE THE APPEAL AFTER GIVING DU E OPPORTUNITY OF HEARING TO THE ASSESSEE AS PER LAW. 7. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 15 TH JUNE, 2015. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 15 TH JUNE, 2015. CPU* 107 -: 6: - 6