Smt. Kamini Gupta, Mandi V. Addl. CIT, Mandi

ITA 576/CHANDI/2012

• Counselvise Citation: 57621514 RSA 2012
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 17-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAI SHREE SHARMA
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B, CHANDIGARH BEFORE MS. SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER ITA NO.576 /CHD/2012 (ASSESSMENT YEAR: 2007-08) SMT.KAMINI GUPTA, VS. THE ADDL.C.I.T., PROP.PARAS BROS., MANDI. VPO GUTKAR, MANDI. PAN: AHPPG0472L (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SMT. JAISHREE SHARMA, DR DATE OF HEARING : 12.07.2012 DATE OF PRONOUNCEMENT : 23.07.2012 O R D E R PER SUSHMA CHOWLA, J.M. : THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER O F THE COMMISSIONER OF INCOME TAX (APPEALS), SHIMLA DATED 18.01.2011 RELATING TO ASSESSMENT YEAR 2007-08 AGAINST THE ORD ER PASSED U/S 143(3) OF INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. THE ASSESSEE HAS MOVED AN APPLICATION FOR ADJOURNMENT WHICH IS REFUSED IN VIEW OF THE ISSUE RAISED IN THE PRESENT APPEAL. THE ONLY GROUND OF APPEAL RAISED BY THE ASSESSEE READS AS UN DER: 1. OPPORTUNITY OF BEING HEARD WAS NEVER PROVIDED T O ME. NO NOTICE WAS RECEIVED TO ATTEND THE CASE AND PLACE OUR STAND. EX-PARTE ORDER WAS PASSED ARBITRARY. IN FACT PHOTO COPY OF CIT (APPEALS) ORDER WAS RECEIVED FROM LOCAL INCOME TAD OFFICE APPROXIMATELY ONE YEAR AFTER THE PASSING OF ORDER. THIS IS TOTAL VIOLATION OF PRINCIPAL OF NATURAL JUSTICE. THIS WAS GROSS VIOLATION OF LEGAL MAXIM AUDI ALTERM PARTEM. (LISTEN TO OTHER 2 PERSON; NO ONE TO BE CONDEMNED UNHEARD). 3. THE PRESENT APPEAL IS FILED AFTER A DELAY OF SIX DAYS. THE ASSESSEE HAS FILED AN AFFIDAVIT IN WHICH SHE HAS STATED THAT SHE HAD NEVER RECEIVED THE NOTICE FROM THE CIT (APPEALS) TO ATTEND THE APP ELLATE PROCEEDINGS NOR COPY OF THE EX-PARTE ORDER PASSED BY THE CIT (A PPEALS) WAS RECEIVED BY THE ASSESSEE. IN VIEW OF SHORT DELAY OF SIX DAY S WE CONDONE THE SAID DELAY IN FILING THE APPEAL BEFORE US. 4. THE CIT (APPEALS) IN THE PRESENT APPEAL HAD DISM ISSED THE APPEAL OF THE ASSESSEE IN LIMINI BECAUSE OF NON-ATTENDANCE OF THE ASSESSMENT. IN THE ALTERNATIVE, THE CLAIM OF THE ASSESSEE IS TH AT SHE HAD NEVER RECEIVED NOTICE OF HEARING ISSUED BY CIT (APPEALS). 5. THE PRELIMINARY ISSUE IN THE PRESENT APPEAL IS A GAINST THE PASSING OF AN EX-PARTE ORDER BY THE LD. CIT(A) DUE TO THE N ON ATTENDANCE OF THE ASSESSEE ON THE VARIOUS DATES OF HEARING BEFORE THE CIT(A). THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE ORDER O F CIT(A). THE PRINCIPLE OF NATURAL JUSTICE REQUIRES REASONABLE OP PORTUNITY OF HEARING TO BE ALLOWED TO THE ASSESSEE BEFORE PASSING AN ORDER. WE FIND THAT CIT(A) HAS NOT PASSED A SPEAKING ORDER IN THE CASE. UNDER THE PROVISIONS OF SECTION 250(6) OF THE INCOME TAX ACT, THE CIT(A) HA S TO PASS A SPEAKING ORDER IN RESPECT OF THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE AFTER HEARING THE ASSESSEE. WE FIND THAT CIT(A) IN THE PRESENT CASE HAS FAILED TO FOLLOW THE PROCEDURE IN APPEAL PROCEEDINGS AS LA ID DOWN IN SECTION 250 OF THE INCOME TAX ACT. IN THE INTEREST OF JUST ICE, WE DEEM IT FIT TO RESTORE THE ISSUE BACK TO THE FILE OF CIT(A) TO DEC IDE THE ISSUE RAISED BY THE ASSESSEE VIDE SPEAKING ORDER AFTER ALLOWING RE ASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS DIRECT ED TO APPEAR BEFORE THE CIT(A) ON THE APPOINTED DATE/S OF HEARING AND PRESE NT HIS CASE. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE THUS ALLOWED FOR STATISTICAL PURPOSES. WE ARE NOT ADDRESSING THE ISSUE ON MERI TS IN VIEW OF OUR SETTING ASIDE THE ISSUE TO THE FILE OF CIT(A). 3 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 3 RD JULY, 2012. SD/- SD/- (MEHAR SINGH) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 23 RD JULY, 2012 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH