M/S. SHREE ELASTICS PVT. LTD., Indore V. THE ITO 2(1), Indore

ITA 557/IND/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5967 (ITAT-INDORE)
• Duration Of Justice: 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 20-06-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 20-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Assessee Lawyers: S S DESHPANDE
• Keywords: Principle of natural justice

Judgement Text

SHREE ELASTICS - SMC ITA NOS.555 TO 557 OF 2015 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE SMC BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER ITA NOS. 557, 555 & 556/IND/2015 A.YS. 2010-11 M/S. SHREE ELASTICS P. LTD., INDORE PAN AAICS 7800 D :: APPELLANT VS ITO-2(1), INDORE :: RESPONDENT ASSESSEE BY SHRI S.S. DESHPANDE, CA RESPONDENT BY SHRI MOHD. JAVED, DR DATE OF HEARING 20.6.2016 DATE OF PRONOUNCEMENT 20.6.2016 O R D E R PER SHRI D.T. GARASIA, JM THESE THREE APPEALS ARE FILED BY THE ASSESSEE CHAL LENGING THE DIFFERENT ORDERS OF LD. CIT(A)-II, INDORE, DATED 27.2.2015 PA SSED IN THE MATTER U/S 143(3), 271A & 271B, RESPECTIVELY. 2. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT NO PROPER OPPORTUNITY WAS GIVEN BY THE ASSESSING OFFICER TO THE ASSESSEE AND THE LD. CIT(A) ALSO DISMISSED THE APPEALS AFTER APPLYING THE PROVISIONS OF MULTIPLAN INDIA LIMITED. IT IS PRAYED THAT THE APPEALS MAY BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER AS BEFORE DECIDING THE MATTERS, THE BOOKS O F ACCOUNT WERE REQUIRED TO TEST-CHECKED, WHICH COULD NOT HAPPEN. SHREE ELASTICS - SMC ITA NOS.555 TO 557 OF 2015 2 3. THE LD. SENIOR D.R. OBJECTED TO RESTORATION AND RELIED UPON THE ORDERS OF THE LOWER AUTHORITIES. 4. I HAVE PERUSED THE ORDERS OF LOWER AUTHORITIES. I FIND THAT THE WHILE PASSING ORDERS IN THE MATTERS, THE ASSESSING OFFICE R HIMSELF NOTED THAT THE ASSESSEE SUBMITTED AUDIT REPORT 3CD, 3CA, BANK STAT EMENTS, WRITTEN SUBMISSION. THE ASSESSING OFFICER ALSO NOTED THE AU DIT REPORT SUBMITTED BY THE ASSESSEE IS REJECTED IN ABSENCE OF BOOKS OF ACC OUNT. THUS, THE ASSESSING OFFICER DECIDED THE MATTERS IN EXPARTE MANNER IN AB SENCE OF BOOKS OF ACCOUNT. LD. CIT(A) HAS ALSO DISMISSED THE APPEALS IN EXPART E MANNER BY APPLYING MULTIPLAN INDIA LIMITED, 38 ITD 320 FOR NON-PROSECU TION. THUS, I FIND FORCE IN THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSES SEE THAT BEFORE ARRIVING AT ANY CONCLUSION, THE BOOKS OF ACCOUNT WERE REQUIRED TO BE TEST-CHECKED, WHICH COULD NOT HAPPEN. FURTHER, I AM OF THE VIEW THAT TH E PRINCIPLE OF AUDI ALTERAM PARTEM IS THE BASIC CONCEPT OF NATURAL JUSTICE. THE EXPRE SSION AUDI ALTERAM PARTEM IMPLIES THAT A PERSON MUST BE GIVEN OPPORTUNITY T O DEFEND HIMSELF. THIS PRINCIPLE 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 LEGAL REPRESENTATION, D ISCLOSURE OF EVIDENCE TO PARTY, REPORT OF ENQUIRY TO BE SHOWN TO THE OTHER P ARTY AND REASONED DECISIONS OR SPEAKING ORDERS. I FIND THAT THE RIGHT OF HEARIN G IS DECIDED BY THE HON'BLE SUPREME COURT IN THE CASE OF MANEKA GANDHI VS. UNIO N OF INDIA (1978 AIR 597; 1 SCC 248), WHEREIN HON'BLE SUPREME COURT HAS HELD THAT RULE OF FAIR HEARING IS NECESSARY BEFORE PASSING ANY ORDER. I FI ND THAT IT IS PRE-DECISION SHREE ELASTICS - SMC ITA NOS.555 TO 557 OF 2015 3 HEARING STANDARD OF NORM OF RULE OF AUDI ALTERAM PARTEM. I FIND THAT IN THE INSTANT APPEALS, THE ASSESSEE WAS NOT GIVEN PROPER HEARING. THEREFORE, I AM OF THE VIEW THAT THE ASSESSEE MUST BE GIVEN ONE MOR E OPPORTUNITY OF HEARING TO REPRESENT ITS MATTERS. THEREFORE, I ALLOW THESE APPEALS. THE ASSESSEE IS DIRECTED TO REMAIN PRESENT BEFORE THE ASSESSING OFF ICER WITHIN 2 MONTHS AFTER THE RECEIPT OF THIS ORDER. THE ASSESSING OFFICER SH OULD DECIDE THE APPEALS AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE ASSE SSEE AS PER LAW. 5. IN THE RESULT, THE APPEALS ARE ALLOWED FOR STATI STICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 20.6.2016 SD/- ( D.T. GARASIA) JUDICIAL MEMBER DATED : 20.6.2016 !VYS! COPY TO: APPELLANT/RESPONDENT/CIT(A)/CIT/DR, INDORE