Shri Mahendra Kumar Tulsian HUF, Kanpur V. Assistant Commissioner of Income Tax-1, Kanpur

ITA 650/LKW/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1789 (ITAT-LUCKNOW)
• Duration Of Justice: 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 25-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUBMITTED THAT NOTICE ISSUED
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 148

Judgement Text

I.T.A. NO.650/LKW/2017 ASSESSMENT YEAR:2009-10 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC, LUCKNOW BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA NO.650/LKW/2017 ASSESSMENT YEAR:2009-10 SHRI MAHENDRA KUMAR TULSIAN HUF H2/331, KIDWAI NAGAR, KANPUR. PAN:AABHM 7506 G VS. A.C.I.T.-1, KANPUR. (APPELLANT) (RESPONDENT) O R D E R PER T. S. KAPOOR, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF CIT(A)-I, KANPUR DATED 03/07/2017 PERTAINING TO ASSESSMENT YEAR 2009 -10. 2. AT THE OUTSET, LEARNED A. R. INVITED OUR ATTENT ION TO THE GROUNDS OF APPEAL AND SUBMITTED THAT THE NOTICE ISSUED BY ASSESSING O FFICER U/S 148 OF THE ACT WAS VOID AB INITIO AS ASSESSEE HAD GIVEN ALL INFORMATIO N AS REQUIRED BY THE INVESTIGATION WING. IT WAS FURTHER SUBMITTED THAT THE ASSESSING OFFICER HAD FAILED TO TAKE PERMISSION FROM THE HIGHER AUTHORITY BEFORE ISSUE O F NOTICE U/S 148 OF THE ACT. OUR ATTENTION WAS INVITED TO PAGE 50 OF THE PAPER B OOK WHERE A COPY OF APPROVAL FOR ISSUE OF NOTICE U/S 148 ALONG WITH FORM OF RECO RDING REASONS FOR REOPENING OF THE CASE WERE PLACED AT PAGES A-51 TO A-55. LEARNE D A. R. SUBMITTED THAT ON THE FORMAT FOR RECORDING REASON FOR REOPENING THE JT. C IT HAS NOT PUT HIS SIGNATURE AND THEREFORE, THE NOTICE ITSELF IS BAD IN LAW. LEARNE D A. R. WAS CONFRONTED AS TO WHETHER THE LEARNED CIT(A) HAS PASSED THE ORDER EX- PARTE TO WHICH HE STATED THAT THE ORDER WAS NOT EX-PARTE BUT FINDING THE ORDER OF LEARNED CIT(A) WE OBSERVE THAT LEARNED CIT(A) HAS DECIDED THE ISSUE ON THE BASIS O F STATEMENT OF FACTS AND APPELLANT BY SHRI PRADEEP G. TULSIAN, C.A. RESPONDENT BY SHRI AJAY KUMAR, D.R. DATE OF HEARING 28/08/2018 DATE OF PRONOUNCEMENT 31/08/2018 I.T.A. NO.650/LKW/2017 ASSESSMENT YEAR:2009-10 2 THEREFORE, THE LEARNED A. R. WAS ASKED AS TO WHETHE R ANY WRITTEN SUBMISSIONS WERE FILED BEFORE HIM AND WAS ASKED TO PRODUCE THE SAME TO WHICH HE STATED THAT HE WAS NOT HAVING ANY COPY OF WRITTEN SUBMISSIONS. THEREFORE, UNDER THESE FACTS AND CIRCUMSTANCES, WE OBSERVE THAT LEARNED CIT(A) H AD PASSED THE ORDER EX-PARTE AND WE FORMED AN OPINION THAT LEARNED CIT(A) SHOULD PASS THE ORDER AFTER HEARING THE ASSESSEE. THE PROVISION OF SECTION 250 WHICH D EALS WITH THE PROCEDURE IN APPEAL BEFORE THE CIT(A), ALLOWS A RIGHT TO AN ASSE SSEE TO BE HEARD AT THE TIME OF HEARING OF APPEAL. EVEN THE NATURAL JUSTICE DEMAND S THAT NO APPEAL SHOULD BE DISPOSED OF WITHOUT BEING HEARD THE PARTY OR WITHOU T GIVING HIM THE PROPER AND SUFFICIENT OPPORTUNITY. WE ARE OF THE VIEW FROM TH E FACTS OF THE CASE THAT THE ASSESSEE HAS NOT BEEN GIVEN PROPER AND SUFFICIENT O PPORTUNITY BEFORE DISPOSING OF THE APPEAL BY THE CIT(A). WE, THEREFORE, IN THE IN TEREST OF JUSTICE AND FAIR PLAY TO BOTH THE PARTIES, SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE APPEAL TO THE FILE OF THE CIT(A) WITH THE DIRECTION THAT THE CIT(A) SHALL REFIX THE SAID APPEAL AND DECIDE THE APPEAL AFRESH AFTER GIVING PROPER AND SUFFICIEN T OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO BE PRESENT ON THE DATE OF HEARING FIXED BY LEARNED CIT(A) AND NOT TO SEEK UNDUE ADJOU RNMENT AND CO-OPERATE WITH LEARNED CIT(A) IN DISPOSING OF THE APPEAL. 3. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 31/08 /2018) SD/. SD/. (PARTHA SARATHI CHAUDHURY) ( T. S. KAPOOR ) JUDICIAL MEMBER A CCOUNTANT MEMBER DATED:31/08/2018 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW