Smt. Rakhi Kohli, Chandigarh V. DCIT, Chandigarh

ITA 550/CHANDI/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5024 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 28-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGHSR
• Keywords: Opportunity of being heard; Principle of natural justice; Non passing of speaking order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER ITA NO. 550/CHD/2017 ASSESSMENT YEAR: 2009-10 SMT. RAKHI KOHLI VS. THE DCIT H.NO. 243, SECTOR 35-C CIRCLE 4(1) CHANDIGARH CHANDIGARH PAN NO. ACSPK3865H (APPELLANT) (RESPONDENT) APPELLANT BY : SH. VINEET KRISHAN,ADVOCATE RESPONDENT BY : SH. MANJIT SINGH,SR.DR DATE OF HEARING : 16/05/2017 DATE OF PRONOUNCEMENT : 13/07/2017 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DT. 03/02/2017, CIT(A)-II, GURGAON PERTAINING TO 2009-10 ASSESSMENT YEAR ON VARIOUS GROUNDS WHEREIN THE PARTIES WERE HEARD ONLY ON GROUND NO. 1 & 2 WHICH ARE REPRODUCED HEREUNDER: THAT THE HONBLE COMMISSIONER OF INCOME TAX (APPEAL S)-II, GURGAON GRAVELLY ERRED IN DECIDING THE APPEAL EXPARTE WITHO UT AFFORDING ANY REASONABLE OPPORTUNITY OF BEING HEARD TO THE APPELL ANT. THAT THE ORDER PASSED BY HONBLE COMMISSIONER OF IN COME TAX (APPEAL)-II, GURGAON VIDE APPEAL NO. 14/2014-15 DAT ED 03/02/2017 IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE AS NO REAS ONABLE OPPORTUNITY OF BEING HEARD WAS PROVIDED TO APPELLANT. 2. THE LD. AR INVITING ATTENTION TO THE IMPUGNED OR DER SUBMITTED THAT AN EXPARTE ORDER HAS BEEN PASSED BY THE LD. CIT(A), TAKING NOTE OF THE FACT THAT TWO SPECIFIC NOTICES I.E. 11/07/2016 AND 14/09/2016 WERE STATED TO HAVE BEEN SERVED UPON THE ASSESSEE AND THE NOTIC E DT. 10/01/2017 RETURNED BACK UNSERVED. ADDRESSING THE FACT IT WAS HIS SUBMISSION THAT IN RESPONSE TO THE FIRST TWO NOTICES THE ASSESSEE DID APPEAR BEFORE THE LD. CIT(A) WHO STATED THAT THE NEXT DATE OF HEARING SHA LL BE INTIMATED TO THE ASSESSEE. THE THIRD NOTICE ADMITTEDLY WAS NOT SERV ED, HENCE OPPORTUNITY OF BEING HEARD HAS BEEN DENIED. EVEN OTHERWISE IT W AS HIS SUBMISSION THAT THE IMPUGNED ORDER IS A NON SPEAKING ORDER AS THE P ENALTY IMPOSED HAS BEEN UPHELD WITHOUT ANY DISCUSSION ON FACTS. ACCORD INGLY IT WAS HIS LIMITED 2 PRAYER THAT THE ISSUE MAY BE RESTORED BACK TO THE F ILE OF LD. CIT(A)IN ORDER TO GRANT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . 3. THE LD. SR.DR DID NOT OPPOSE THE REQUEST FOR REM AND THOUGH INSISTED THAT THE ASSESSEE SHOULD ENSURE THAT SHE PARTICIPAT ES IN THE PROCEEDING. 4. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD. ACCEPTING THE ORAL UNDERTAKING GIVEN BY THE LD. AR THE IMPUGNED ORDER IS SET ASIDE. ALTHOUGH QUA THE SUBMISSIONS A ND THE FINDINGS ON RECORD, THERE IS A CONTRADICTION AS THE LD. CIT(A) RECORDS NONE APPEARED AND THE LD. AR STATES THE ASSESSEE DID APPEAR. THE FACT REMAINS THAT EVEN OTHERWISE IT IS SEEN THAT THE STATUTORY REQUIREMENT S AS SET OUT IN SUB SECTION (6) OF 250 OF THE INCOME TAX ACT IS NOT FULFILLED I N THE FACTS OF THE PRESENT CASE. THE POWER OF THE FIRST APPELLATE AUTHORITY, I S SET OUT IN SECTION 251 OF THE ACT AND THE PROCEDURE TO BE FOLLOWED IS SET OUT IN SECTION 250 OF THE INCOME TAX ACT 1961 AND SUB CLAUSE (6) OF THE SAME MANDATES THE CIT(A) IN DISPOSING OF THE APPEAL SHALL PASS AN ORDER IN W RITING SETTING OUT THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE DECISION HAS TO BE BACKED BY REASONS JUSTIFYING THE CONCLUSION. THE SA ID EXERCISE IS FOUND TO BE MISSING IN THE PECULIAR FACTS OF THE PRESENT CAS E. ACCORDINGLY, FOR THE REASONS GIVEN HEREUNDER, THE IMPUGNED ORDER IS SET ASIDE BACK TO THE FILE OF CIT(A) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. THE SAID ORDER IS PRONOUNCED AT THE TIME OF HEARING ITS ELF IN THE PRESENCE OF THE PARTIES. 5. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13/07/2017. SD/- (DIVA SINGH) JUDICIAL MEMBER DATED : AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR