Bharatkumar Harshadray Dhanak, Surat V. ITO Ward 3(3)(1), Surat

ITA 69/SRT/2019

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1832 (ITAT-SURAT)
• Duration Of Justice: 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 06-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 147; 148; 144

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER ITA NO.69/SRT/2019 ASSESSMENT YEAR: 2010-11 / VS. ( APPELLANT ) BHARATKUMAR HARSHADRAY DHANAK, 104, NAKSHTRA EMBASSY, GAURAV PATH ROAD, PALANPUR GAM, SURAT. ( REVENUE ) THE INCOME TAX OFFICER, WARD-3(3)(1), SURAT. P.A.N: AAPPD 7005 F APPELLANT BY SH R I MEHUL SHAH CA RESPONDENT BY SHRI PRASOON KABRA SR. DR DATE OF HEARING: 2 5 . 0 2 .201 9 DATE OF PRONOUNCEMENT : 26. 0 2 .201 9 / O R D E R PER KUL BHARAT, J.M : 1. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD.COMMISSIONER OF INCOME TAX (APPEALS)-3, SURAT [IN SHORT THE CIT(A)] DATED 11.01.2019 PERTAINING TO ASSESSMENT YEAR 2010-11. 2. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED ASSESSING OFFICER HAS ERRED IN RE-OPENING ASSESSMENT U/S 147 BY ISSUING NOTICE U/S 148 OF THE I.T.ACT, 1961. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED ASSESSING OFFICER HAS ERRED IN PASSING ORDER U/S 144 OF THE I.T.ACT, 1961. 3. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED IN PASSING EX-PARTE ORDER WITHOUT GIVING REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEARD WHEN IN EVERY OCASION ASSESSEE HAS ASKED TO AJOURNMENT. IN THE LAST OCASION WHEN THE HEARING WAS FIXED ON 01.01.2019, THE COUNSEL OF ASSESSEE HAS APPLIED FOR ADJOURNMENT AS HE WAS NEWLY APPOINTED. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ORDER OF ASSESSING OFFICER WITHOUT PASSING ANY SPEAKING ORDER 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT THE LEARNED ASSESSING OFFICER HAS ERRED IN MAKING THE ADDITION OF RS.10,96,659/- ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN BANK OF BARODA ACCOUNT U/S.68 OF THE I.T.ACT. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT THE LEARNED ASSESSING OFFICER HAS ERRED IN MAKING THE ADDITION OF RS.5,60,000/- ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN ICICI BANK ACCOUNT U/S.68 OF THE I.T.ACT. 7. IT IS THEREFORE PRAYED THAT ASSESSMENT FRAMED U/S 14 R.W.S. 147 OF THE ACT MAY KINDLY BE QUASHED AND/OR ADDITION MADE BY ASSESSING OFFICER MAY PLEASE BE DELETED. ALTERNATIVELY, THE ORDER OF CIT(A) MAY PLEASE BE SET-ASIDE TO HIS FILE FOR PASSING APPELLATE ORDER A FRESH. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT NO PROPER OPPORTUNITY OF HEARING AFFORDED TO THE ASSESSEE. THE LD. CIT (A) WAS NOT JUSTIFIED IN REJECTING THE APPEAL OF THE ASSESSEE EX-PARTE. THE DO0CUMENTS RELIED BY THE AO WERE NOT MADE AVAILABLE TO ASSESSEE. THE LD. COUNSEL PRAYED THAT THE APPEAL BE RESTORED TO THE FILE OF THE AO. THEREFORE, IT WAS REQUESTED THAT MATTER BE RESTORED FOR PROPER EVALUATION OF FACTS BY THE AO, WITH A DIRECTION THAT PROPER OPPORTUNITY OF BEING HEARD MAY BE ALLOWED TO THE ASSESSEE. 4. THE LD. SENIOR D.R. RELIED ON THE ORDERS OF THE AUTHORITIES BELOW, HOWEVER, HAS NO OBJECTION IF THE ENTIRE ISSUE IS SET-ASIDE TO THE AO. 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. WE FIND THAT THE LD. CIT (A) HAS NOT ALLOWED PROPER OPPORTUNITY OF BEING HEARD. WE FIND THAT THE CIT (A) HAS SIMPLY DISMISSED THE APPEAL BY APPLYING THE RATIO OF DECISION IN THE CASE OF B. N. BHATTACHARJEE 118 ITR 461 (SC) AND M/S. CHEMIPOL V. UOI APPEAL NO. 62 OF 2009. THE PRINCIPLE OF AUDI ALTERAM PARTEM IS THE BASIC CONCEPT OF NATURAL JUSTICE. THE EXPRESSION AUDI ALTERAM PARTEM IMPLIES THAT A PERSON MUST BE GIVEN AN OPPORTUNITY TO 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, DISCLOSURE OF EVIDENCE TO PARTY, REPORT OF ENQUIRY TO BE SHOWN TO THE OTHER PARTY AND REASONED DECISIONS OR SPEAKING ORDERS. WE TOOK THIS GUIDANCE FOR RIGHT OF HEARING, FROM THE RATIO AS IS LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF MANEKA GANDHI V. UNION OF INDIA, WHEREIN HON'BLE SUPREME COURT HAS LAID DOWN THAT RULE OF FAIR HEARING IS NECESSARY BEFORE PASSING ANY ORDER. WE FIND THAT IT IS PRE- DECISION HEARING STANDARD OF NORM OF RULE OF AUDI ALTERAM PARTEM. WE FIND THAT IN THIS INSTANT CASE, THE ASSESSEE WAS NOT GIVEN PROPER HEARING. THEREFORE, WE ARE OF THE VIEW THAT THE ASSESSEE MUST BE GIVEN ONE MORE OPPORTUNITY OF HEARING AND TO REPRESENT HIS CASE. THEREFORE, IN EXERCISE OF POWER CONFERRED UNDER RULE 28 OF TRIBUNAL RULES, WE RESTORE THIS APPEAL TO THE FILE OF THE LD. CIT(A) FOR RECONSIDERATION ALL GROUNDS OF APPEAL AFTER ALLOWING PROPER OPPORTUNITY OF BEING HEARD IN ACCORDANCE WITH LAW. NEVERTHELESS, TO MENTION THAT THE ASSESSEE WILL COOPERATE IN THE APPEAL PROCEEDINGS AND HIS FAILURE WILL ENTAIL CONFIRMATION OF THE IMPUGNED ADDITION MADE BY THE AO. THE ASSESSEE WILL FILE NECESSARY EVIDENCES ON WHICH HE WANTS TO RELY UPON. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 26.02.2019. SD/- (O.P.MEENA) SD/- (KUL BHARAT) ACCOUNTANT MEMBER JUDICIALMEMBER SURAT; DATED : 26/02/2019 / S.GANGADHARA RAO/SR.PS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUARD FILE. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT