Dr. Shubha, V. ITO,

ITA 592/LKW/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9199 (ITAT-LUCKNOW)
• Duration Of Justice: 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 03-01-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 13-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANADI VERMA
• Keywords: Opportunity of being heard; Principle of natural justice; Right to appeal; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, A - BENCH, LUCKNOW. BEFORE SHRI H.L.KARWA, HON'BLE VICE PRESIDENT AND SHRI N.K.SAINI, ACCOUNTANT MEMBER I.T.A.NO.592(LKW.)/2010 A.Y.:2000-01 DR.SUBHA, VS. THE ITO-II, W/O DR. ARVIND, LUCKNOW. C/O LIFELINE POLYCLINIC, STATION ROAD, NANPARA, BAHRAICH. PAN AZPPS7308N (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AMIT SHUKLA, ADVOCATE RESPONDENT BY : SHRI ANADI VERMA SR.D.R. O R D E R PER H.L.KARWA, VICE PRESIDENT THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF THE LD.CIT(A)-II, LUCKNOW DATED 28.5.2010 RELATING TO T HE ASSESSMENT YEAR 2000-01. 2. AT THE TIME OF HEARING, SHRI AMIT SHUKLA, ADVOCA TE, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD.CIT(A) HAS PASSE D THE EX PARTE WITHOUT AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HE, THEREFORE, SUBMITTED THAT THE ORDER OF THE LD.CIT(A) MAY BE SE T ASIDE AND THE MATTER BE RESTORED TO THE FILE OF THE LD.CIT(A) FOR DECIDING THE APPEAL AFRESH ON MERITS AFTER PROVIDING AN OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. HOWEVER, SHRI ANADI VERMA, LD.SR.D.R. SUBMITTED THAT THE LD.CIT( A) HAS AFFORDED AMPLE OPPORTUNITY OF BEING TO THE ASSESEE AND THEREFORE, THE CONTENTION RAISED BY 2 SHRI AMIT SHUKLA, ADVOCATE, LD. COUNSEL FOR THE ASS ESSEE DESERVES TO BE REJECTED. 3. AFTER CONSIDERING THE SUBMISSIONS OF THE LD. REP RESENTATIVES OF BOTH THE PARTIES, WE FIND THAT THE LD.CIT(A) HAS DECIDE D THE APPEAL OF THE ASSESSEE EX PARTE. ON PERUSAL OF THE IMPUGNED ORDER, IT WOUL D BE CLEAR THAT THE LD.CIT(A) HAS NOT PROVIDED ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE APPEAL. IN OUR OPINION , THE LD.CIT(A) SHOULD HAVE AFFORDED ADEQUATE OPPORTUNITY OF BEING HEARD T O THE ASSESSEE BEFORE DECIDING THE APPEAL. IN THE CASE OF RADHIKA CHARAN BANERJEE VS. SAMBALPUR MUNICIPALITY, AIR (1979) ORISSA 69, THE HON'BLE ORI SSA HIGH COURT HELD THAT A RIGHT OF APPEAL WHEREVER CONFERRED INCLUDES A RI GHT OF BEING AFFORDED AN OPPORTUNITY OF BEING HEARD, IRRESPECTIVE OF THE LAN GUAGE CONFERRING SUCH RIGHT. THAT IS A PART AND PARCEL OF THE PRINCIPLE O F NATURAL JUSTICE. WHERE AN AUTHORITY IS REQUIRED TO ACT IN A QUASI-JUDICIAL CA PACITY, IT IS IMPERATIVE TO GIVE THE APPELLANT AN ADEQUATE OPPORTUNITY OF BEI NG HEARD BEFORE DECIDING THE APPEAL. THUS, CONSIDERING THE ENTIRE FACTS OF T HE PRESENT CASE, WE THINK IT PROPER TO SET ASIDE THE ORDER OF THE LD.CIT(A) IN TOTO AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO DECIDE THE APPEAL A FRESH ON MERITS IN ACCORDANCE WITH LAW AFTER AFFORDING DUE AND REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT IS MADE CLEAR THAT THE L D.CIT(A) WILL DECIDE THE APPEAL PREFERABLY WITHIN TWO MONTHS FROM THE DATE O F RECEIPT OF THE ORDER. IN VIEW OF THE ABOVE, NO FINDINGS ARE BEING GIVEN ON MERITS. 4. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 3.1.201 1. SD. SD. (N.K.SAINI) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT JANUARY 3RD, 2011. 3 COPY TO THE : 1. APPELLANT 2. RESPONDENT 3. CIT(A) (4) CIT 5.DR. A.R.,ITAT, LUCKNOW. SRIVASTAVA.