Assam State Agricultural Marketing Board, Guwahati V. Income Tax Officer, Ward-3(1), Guwahati

ITA 77/GTY/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0548 (ITAT-GUWAHATI)
• Duration Of Justice: 1 year(s) 3 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-06-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 01-03-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P MRINAL KR DAS
• Assessee Lawyers: D K BISWAS
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 274; 271B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E-COURT, KOLKATA/GAUHATI BEFORE SHRI A.T. VARKEY, JM & DR. A.L.SAINI, AM ITA NO.77/GAU/2019 (A.Y: 2014-15) ASSAM STATE AGRICULTURAL MARKETING BOARD BIPANAN BHAWAN, R.K. MISSION ROAD, ULUBARI, GUWAHATI 781007. VS. INCOME TAX OFFICER, WARD- 3(1) GUWAHATI ./ ./PAN/GIR NO. : AAAJA 2073 R ( /APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY : SHRI D.K. BISWAS, ADVOCATE REVENUE BY : SHRI P. MRINAL KR. DAS, ADDL. CIT / DATE OF HEARING : 04/06/2020 /DATE OF PRONOUNCEMENT: 17/06/2020 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAIN ING TO ASSESSMENT YEAR 2014- 15, IS DIRECTED AGAINST THE ORDER PASSED BY LD. COM MISSIONER OF INCOME TAX (APPEALS) - 2 GUWAHATI DATED 07.01.2019, WHICH IN TURN ARISES O UT OF A PENALTY ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 271B READ WITH SECT ION 274 OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT) DATED 30.06.2017. 2. AT THE OUTSET ITSELF, THE LD. COUNSEL FOR THE ASSES SEE ASSAILED THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE COULD NOT REPRESENT HIS CASE BEFORE LD. CIT(A) AND THE ORDER BEING AN EX-PARTE ORDER, STOOD VITIAT ED ON ACCOUNT OF VIOLATION OF PRINCIPLE OF NATURAL JUSTICE, AS THE ASSESSEE HAS N OT BEEN GIVEN SUFFICIENT OPPORTUNITY OF BEING HEARD. LEARNED COUNSEL ALSO TOOK US THROUGH GROUND NO. 1 R AISED BY THE ASSESSEE WHICH READ AS FOLLOWS: ASSAM STATE AGRICULTURAL MARKETING BOARD ITA NO.77/GAU/2019 A.Y: 2014-15 2 FOR THAT THE LD. CIT(A)-2, GUWAHATI IS NOT JUSTIFI ED IN DISMISSING THE APPEAL PREFERRED BY THE APPELLANT ON EX-PARTE BASIS VIDE DATED 07.01.2019. APPEAL ACKNOWLEDGEMENT NO. 174044211160817 AGAINST THE ORDER PASSED BY THE ASSESSING OFFICER IMPOSING PENALTY OF RS. 1, 50,000/- U/S 271B OF THE I.T. ACT VIDE DATED 30.06.2017 WITHOUT PROVIDING AN Y OPPORTUNITY OF BEING HEARD BY THE APPELLANT. THEREFORE, THE LD. COUNSEL CONTENDED THAT IN THE IN TEREST OF JUSTICE, ANOTHER OPPORTUNITY TO CONTEST THE APPEAL BEFORE THE LD. FIRST APPELLAT E AUTHORITY MAY BE GRANTED TO THE ASSESSEE. THE LD. DR FOR THE REVENUE DEBARRED FROM OBJECTING THE STAND OF THE LD. COUNSEL. 3. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE GROUND NO. 1 RAISED BY THE ASSESSEE AND ORDER PASSED BY THE CIT(A). WE NOTE T HAT CIT(A) HAS NOT PASSED THE ORDER ON MERITS AND THE ASSESSEE HAS NOT BEEN GIVEN SUFFI CIENT OPPORTUNITY OF BEING HEARD. WE NOTE THAT THE HONBLE SUPREME COURT IN M.S.GILL VS THE CHIEF ELECTION COMMISSION 1978 AIR SC 851 HELD THE DICHOTOMY BETWEEN ADMINIS TRATIVE AND QUASI-JUDICIAL FUNCTION VIS--VIS THE DOCTRINE OF NATURAL JUSTICE IS PRESUMABLY OBSOLESCENT AFTER KRAIPAK (A.K. KRAIPAK VS UOI AIR 1970 SC 150) WHICH MAKES THE WATER-SHED IN THE APPLICATION OF NATURAL JUSTICE TO ADMINISTRATIVE PR OCEEDINGS. THE RULES OF NATURAL JUSTICE ARE ROOTED IN ALL LEGAL SYSTEMS AND ARE NOT ANY NEW THEOLOGY. THEY ARE MANIFESTED IN THE TWIN PRINCIPLES OF NEMO JUDEX IN PARTE SUA (NO PERSON SHALL BE A JUDGE IN HIS OWN CASE) AND AUDI ALTEREM PARTEM (THE RIGHT TO BE HEARD). IT HAS BEEN POINTED OUT THAT THE AIM OF NATURAL JUSTICE IS TO SECURE JUSTICE. CONSIDERING THE ABOVE FACTS, WE NOTE THAT ASSESSEE HAS NOT BEEN GIVEN SUFFICIENT OPPORTUNITY OF BEING HEARD AND COULD NOT PLEAD HIS CASE SUCCESSFULLY BEFORE THE LD. CIT(A). WE NOTE THAT THE LD. CIT(A) DID NOT DISCUSS THE ASSESSEES CASE ON MERITS BASED ON THE MATERIAL AVAILABLE BEFORE HIM HENCE IT IS A VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. WE NOTE THAT IT IS SETTLED LAW THAT PRINCIPLES OF N ATURAL JUSTICE AND FAIR PLAY REQUIRE THAT THE AFFECTED PARTY IS GRANTED SUFFICIENT OPPORTUNIT Y OF BEING HEARD TO CONTEST HIS CASE. THEREFORE, WE DEEM IT FIT AND PROPER TO SET ASIDE T HE ORDER OF THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE LD. CIT(A) TO AD JUDICATE THE ISSUE AFRESH ON MERITS AND PASS A SPEAKING ORDER AFTER AFFORDING SUFFICIENT OP PORTUNITY OF BEING HEARD TO THE ASSESSEE. FOR STATISTICAL PURPOSES, THE APPEAL OF T HE ASSESSEE IS TREATED AS ALLOWED. ASSAM STATE AGRICULTURAL MARKETING BOARD ITA NO.77/GAU/2019 A.Y: 2014-15 3 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 17/06 /2020. SD/- ( A.T. VARKEY) SD/- (DR. A. L. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; DATED: 17/06/2020 BISWAJIT, SPS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT- ASSAM STATE AGRICULTURAL MARKETIN G BOARD. 2. / THE RESPONDENT.- INCOME TAX OFFICER, WARD-3(1). 3. ( ) / THE CIT(A), GUWAHATI. 4. / CIT 5. ! $$% , % , / DR, ITAT, GUWAHATI 6. ( / GUARD FILE. //TRUE COPY// BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/D.D.O, I.T.A.T, KOLKATA BENCHES, KOLKATA .