M/s. Sunny Developers, Indore V. The ITO 5(3), Indore

ITA 54/IND/2014

• Counselvise Citation: 5422714 RSA 2014
• Duration Of Justice: 1 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 17-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: S N AGRAWAL
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE (SINGLE MEMBER CASE) BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER I.T.A.NO. 54/IND/2014 A.Y. : 2009-10 M/S.SUNNY DEVELOPERS, ITO, WARD 3, INDORE. VS INDORE. APPELLANT RESPONDENT PAN NO. ABCFS1685G APPELLANT BY : SHRI S.N. AGRAWAL, C.A. RESPONDENT BY : SHRI R.A.VERMA, SR. DR DATE OF HEARING : 22 . 0 9 .201 5 DATE OF PRONOUNCEMENT : 22 . 0 9 .201 5 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-II, INDORE, DATED 21.10.2013 FOR THE ASS ESSMENT YEAR 2009-10. -: 2: - 2 2. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL :- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT RIGHT IN DECIDING THE APPEAL EX-PARTE AFTER REJECTING THE APPLICATION FOR ADJOURNMENT BY THE ASSESSEE. THE ORDER AS PASSED BY THE LD. CIT(A) WAS NEITHER PROPER NOR CORRECT, T HE SAME NOW REQUIRES TO BE QUASHED. 1.2 THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS ERRED IN NOT DECIDING THE APPEAL ON MERIT. IT IS OBLIGATORY ON THE PART OF TH E LD. CIT(A) TO DECIDE THE APPEAL ON THE BASIS OF AVAILAB LE FACTS ON MERIT. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS ALSO ERRED IN NOT DECIDING THE GROUND AS TAKEN BY THE ASSESSEE CHALLENGING THE ACTION OF THE AO IN RESPECT OF REPLACING THE RATE O F GROSS PROFIT AT 11 % AS AGAINST 8.81 % ACTUALLY DECLARED BY THE ASSESSEE AND THEREBY MAKING ADDITION OF RS. 578370/-. -: 3: - 3 3. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT NO PROPER OPPORTUNITY OF HEARING WAS AFFORDED TO THE A SSESSEE. THE LD. CIT(A) WAS NOT JUSTIFIED IN REJECTING THE A PPEAL OF THE ASSESSEE EX-PARTE. THE LD. COUNSEL PRAYED THAT THE APPEAL MAY BE RESTORED TO THE FILE OF LD. CIT(A) AND AN OP PORTUNITY OF HEARING MAY KINDLY BE GIVEN. 4. THE LD. SENIOR D.R. OBJECTED TO THE RESTORATION OF THE APPEAL AND RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 5. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PART IES. I HAVE HEARD THE LD. SENIOR D.R. I FIND THAT THE LD. CIT(A) HAS SIMPLY DISMISSED THE APPEAL BY APPLYING MULTIPLAN I NDIA LIMITED, 38 ITD 320. THE PRINCIPLE OF AUDI ALTERAM PARTEM IS THE BASIC CONCEPT OF NATURAL JUSTICE. THE EXPRESSI ON AUDI ALTERAM PARTEM IMPLIES THAT A PERSON MUST BE GIVEN OPPORTUNITY TO DEFEND HIMSELF. THIS PRINCIPLE IS SINE QUA NON OF EVERY CIVILIZED SOCIETY. THE RIGHT TO NOTICE, RIGH T TO PRESENT CASE AND EVIDENCE, RIGHT TO REBUT ADVERSE EVIDENCE, RIGHT TO CROSS EXAMINATION, RIGHT TO LEGAL REPRESENTATION, D ISCLOSURE OF EVIDENCE TO PARTY, REPORT OF ENQUIRY TO BE SHOWN TO THE OTHER -: 4: - 4 PARTY AND REASONED DECISIONS OR SPEAKING ORDERS. WE FIND THAT THE RIGHT OF HEARING IS DECIDED BY THE HON'BLE SUPR EME COURT IN THE CASE OF MANEKA GANDHI VS. UNION OF INDIA, WH EREIN HON'BLE SUPREME COURT HAS HELD THAT RULE OF FAIR HE ARING IS NECESSARY BEFORE PASSING ANY ORDER. I FIND THAT IT IS PRE- DECISION HEARING STANDARD OF NORM OF RULE OF AUDI ALTERAM PARTEM. I FIND THAT IN THIS INSTANT CASE, THE ASSESSEE WAS N OT GIVEN PROPER HEARING. THEREFORE, I AM OF THE VIEW T HAT THE ASSESSEE MUST BE GIVEN ONE MORE OPPORTUNITY OF HEAR ING AND TO REPRESENT HIS CASE. THEREFORE, I ALLOW THIS APPE AL. THE ASSESSEE IS DIRECTED TO REMAIN PRESENT BEFORE THE L D. CIT(A) WITHIN 2 MONTHS AFTER THE RECEIPT OF THIS ORDER. TH E LD. CIT(A) SHOULD DECIDE THE APPEAL AFTER GIVING DUE OPPORTUNI TY OF HEARING TO THE ASSESSEE AS PER LAW. -: 5: - 5 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 22 ND SEPTEMBER, 2015. SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 22 ND SEPTEMBER, 2015. CPU* 229