Manjeet Bari, Dehradun V. CIT (Appeals)- II, Dehradun

ITA 5786/DEL/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96987 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 27-07-2015
• Assessment Year: 2001-2002
• Appeal Filed On: 27-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA
• Assessee Lawyers: REEMA MALIK
• Keywords: Opportunity of being heard
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. GEORGE GEORGE K. , JM ITA NO. 5786/DEL/2011 : ASSTT. YEAR : 200 1 - 02 MANJEET BARI, 29 - KANWAI ROAD, DEHRADUN, UTTARAKHAND - 248001 VS COMMISSIONER OF INCOME TAX (APPEALS) - II, INCOME TAX OFFICE, SUBHASH ROAD, DEHRADUN (APPELLANT) (RESPONDENT) PAN NO. ABHPB8659E ASSESSEE BY : SH REEMA MALIK, CA REVENUE BY : SH . P. DAM KANUNJNA, SR. DR DATE OF HEARING : 29 . 07 .20 15 DATE O F PRONOU NCEMENT : 20 .08 .2015 ORDER PER N.K . SAINI , A.M. THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 01.09.2011 OF THE L D. CIT(A) - II, DEHRADUN . 2. THE MAIN GRIEVANCE OF THE ASSESSEE IN THIS APPEAL VIDE GROUND NO. 2 RELATES TO THE PASSING OF EX - PARTE ORDER BY THE LD. CIT(A). 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 28.09.2001, DECLARING TAXABLE INCOME OF RS. 1,20,000/ - . HOWEVER, THE ASSESSMENT WAS FRAMED U/S 143(3) OF THE IN COME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) ON 17.03.2004 AT AN ITA NO.5786 /DE L/201 1 MANJEET BARI 2 INCOME OF RS. 1,78,120/ - . LATER ON, THE LD. CIT , DEHRADUN VIDE ORDER DATED 27.03.2006 CANCELLED THE ASSESSMENT U/S 263 OF THE ACT WITH A DIRECTION TO THE AO TO PASS FRESH ASSESSMEN T ORDER . O N TH E DIRECTION OF THE LD. CIT, T HE AO FRAMED THE ASSESSMENT AT AN INCOME OF RS. 4,83,120/ - BY MAKING VARIOUS ADDITIONS AMOUNTING TO RS. 3,05,000/ - . 4. BEING AGGRIEVED THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO DISMISSED THE SAME EX - PARTE BY OBSERVING THAT IN THE ABSENCE OF ANY MATERIAL TO CANVASS A DIFFERENT VIEW , ALL THE FIVE GROUNDS RAISED BY THE ASSESSEE WER E REJECTED . 5 . NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) PASSED THE EX - PARTE ORDER WITHOUT PROVIDING A DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT WAS FURTHER SUBMITTED THAT THE LD. CIT(A ) HAD NOT ADJUDICATED THE ISSUES ON MERIT AND UPHELD THE ADDITIONS MADE BY THE AO. A REQUEST WAS MADE TO SEND THE ISSUES BACK TO THE LD. CIT(A) TO BE ADJUDICATED ON MERIT AFTER PROVIDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NO.5786 /DE L/201 1 MANJEET BARI 3 6 . IN HIS RIVAL SUBMISSIONS THE LD. DR SUPPORTED THE ORDER OF THE LD. CIT(A) AND SUBMITTED THAT THE CASE MAY NOT BE SENT BACK TO THE LD. C IT(A) BECAUSE THE ASSESSEE DID NOT COOPERATE AND NEVER ATTENDED THE APPELLATE PROCEEDINGS WHENEVER THE CASE WAS FIXED FOR HEARING . 7 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE BY PASSING AN EX - PARTE ORDER. HE MENTIONED THAT THE CASE WAS FIXED FOR HEARING ON 27.06.2011 AND THE ASSESSEE TOOK THE ADJOURNMENT FOR 19.07.2011 BUT ON THE SAID DA TE NOBODY APPEARED NOR ANY REQUEST FOR ADJOURNMENT WAS RECEIVED. THE LD. CIT(A) PASSED THE ORDER ON 01.09.2011, SO IT IS NOT CLEAR AS TO WHETHER ANY OPPORTUNITY WAS GIVEN BY THE LD. CIT(A) AFTER 19.07.2011 TO THE ASSESSEE FOR DEFENDING HIS CASE. IN THE INS TANT CASE, IT IS ALSO NOT CLEAR AS TO WHETHER ANY NOTICE OF HEARING WAS ISSUED BY THE LD. CIT(A) FOR HEARING, IF ANY, ON 01.09.2011 WHEN THE IMPUGNED ORDER WAS PASSED. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER MAXIM AUDI ALTERAM PA RTEM . WE, THEREFORE, CONSIDERING THE TOTALITY OF THE FACT, DEEM IT ITA NO.5786 /DE L/201 1 MANJEET BARI 4 APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE A SSESSEE. WE ALSO DIRECT THE ASSESSEE NOT TO SEEK UNDUE OR UNWARRANTED ADJOURNMENT AND TO COOPERATE. 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ( ORDER PRON OUNCED IN THE COURT ON 20 /0 8 / 2015) . SD/ - SD/ - (GEORGE GEORGE K. ) ( N. K. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 20 /0 8 /2015 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR