SMT. SANGEETA WADHWANI, Bhopal V. The ITO 3(1), Bhopal

ITA 733/IND/2014

• Counselvise Citation: 73322714 RSA 2014
• Duration Of Justice: 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 19-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE (SINGLE MEMBER CASE) BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER I.T.A.NO. 733/IND/2014 A.Y. : 2007-08 SMT. SANGEETA WADHWANI, ITO, BHOPAL VS 3(1), BHOPAL APPELLANT RESPONDENT PAN NO. AAJPW3088K APPELLANT BY : NONE RESPONDENT BY : SHRI R.A.VERMA, SR. DR DATE OF HEARING : 22 . 0 9 .201 5 DATE OF PRONOUNCEMENT : 22 . 0 9 .201 5 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-II, BHOPAL, DATED 26.09.2014 FOR THE ASS ESSMENT YEAR 2007-08. -: 2: - 2 2. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL :- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A PROPER AND MEANINGFUL OPPORTUNIT7Y HAS NOT BEEN GIVEN TO THE APPELLANT TO PUT UP HER DEFENSE I N RESPECT OF THE ISSUES DISPUTED IN APPEAL NOW. 2. THAT THE REPORT OF PATWARI DATED 7.12.2009 ON WHICH THE LD. AO/CIT(A) HAS MADE THE AGRICULTURAL LAND LIABLE TO CAPITAL GAINS IS ABSOLUTELY VAGUE MISLEADING AND ISSUED WITH RESPECT TO VILLAGE BAKANIA BHAURI INSTEAD OF WRT KHASRA NUMBER OF IMPUGNED LAND. ALSO, IT DOES NOT SHOW WHAT METHOD OF MEASUREMENT HAS BEEN ADOPTED BY PATWARI TO ARRIVE AT THE CONCLUSION THAT THE LAND IN QUESTION IS SITUATED WITHIN THE RADIUS OF 8 KM FROM MUNICIPAL CORPORATION, BHOPAL. 3. THAT THE IMPUGNED PIECE OF AGRICULTURAL LAND BEARING KHASRA NO.1303/21 PHN.28 (NEW NO. 37) SITUATED AT VILLAGE BAKANIA, FACTUALLY FALLS BEYOND 8 -: 3: - 3 KMS .FROM MUNICIPAL CORPORATION LIMIT AND THEREBY EXEMPT FROM TAX. 4. NOTWITHSTANDING AND WITHOUT PREJUDICE TO THE ABOVE THE ASSESSEE HAS REINVESTED SALE PROCEEDS OF AFORESAID LAND IN A HOUSE PROPERTY AND THEREBY SHE IS ENTITLED TO CLAIM EXEMPTION U/S 54. 3. NOBODY APPEARED ON BEHALF OF THE ASSESSEE. 4. THE LD. SENIOR D.R. RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 5. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PART IES. I HAVE PERUSED THE ORDERS OF LOWER AUTHORITIES. I HAV E HEARD THE LD. SENIOR D.R. I FIND THAT THE LD. CIT(A) HAS SIMP LY DISMISSED THE APPEAL BY APPLYING MULTIPLAN INDIA LIMITED, 38 ITD 320. 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 OPPORTUNITY TO DEFEND H IMSELF. 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 PAR TY, REPORT OF -: 4: - 4 ENQUIRY TO BE SHOWN TO THE OTHER PARTY AND REASONED DECISIONS OR SPEAKING ORDERS. WE FIND THAT THE RIGHT OF HEARI NG IS DECIDED BY THE HON'BLE SUPREME COURT IN THE CASE OF MANEKA GANDHI VS. UNION OF INDIA, WHEREIN HON'BLE SUPREME COURT H AS HELD THAT RULE OF FAIR HEARING IS NECESSARY BEFORE PASSI NG ANY ORDER. I FIND THAT IT IS PRE-DECISION HEARING STANDARD OF NORM OF RULE OF AUDI ALTERAM PARTEM. I FIND THAT IN THIS INSTANT CASE, THE ASSESSEE WAS NOT GIVEN PROPER HEARING. THEREFORE, I AM OF THE VIEW THAT THE ASSESSEE MUST BE GIVEN ONE MORE OPPOR TUNITY OF HEARING AND TO REPRESENT HIS CASE. THEREFORE, I ALL OW THIS APPEAL. THE ASSESSEE IS DIRECTED TO REMAIN PRESENT BEFORE THE LD. CIT(A) WITHIN 2 MONTHS AFTER THE RECEIPT OF THI S ORDER. THE LD. CIT(A) SHOULD DECIDE THE APPEAL AFTER GIVING DU E OPPORTUNITY OF HEARING TO THE ASSESSEE AS PER LAW. -: 5: - 5 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 22 ND SEPTEMBER, 2015. SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 22 ND SEPTEMBER, 2015. CPU* 229