M/s Balraj Singla Eduational Society, Patran V. Chief Commissioner of Income Tax, Ludhiana

ITA 796/CHANDI/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5173 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 08-02-2017
• Assessment Year: 2014-2015
• Appeal Filed On: 27-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI SARANGA L
• Keywords: Opportunity of being heard
• Section: 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 796/CHD/2015 ASSESSMENT YEA R: 2014-15 M/S BALRAJ SINGLA, VS. THE CHIEF COMMISSIONER OF EDUCATIONAL SOCIETY, INCOME TAX, SUNIAR BASTI, WARD NO.5, LUDHIANA. PATRAN. DISTT. PATIALA. PAN NO. AAAAB7941G (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAKESH CAJLA RESPONDENT BY : SHRI RAVI SARANGAL, CIT-DR DATE OF HEARING : 27.04.2017 DATE OF PRONOUNCEMENT : 18.05.2017 ORDER PER MS. DIVA SINGH,JM THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSA ILING THE CORRECTNESS OF THE ORDER DATED 23.09.2015 ON APPLICATION UNDER SECTION 10(23C)(VI) OF LD. CHIEF COMMISSIONER OF INCOME TAX, LUDHIANA. 2. AT THE TIME OF HEARING, AN ADJOURNMENT APPLICATION WAS MOVED ON BEHALF OF THE REVENUE SEEKING TIME. HOWEVER, THE SAID ADJO URNMENT WAS OBJECTED TO BY THE LD. AR STATING THAT THE IMPUGNED OR DER IS AN EX-PARTE ORDER AND IN THE PECULIAR FACTS OF THE PRESENT CASE, HIS L IMITED REQUEST WOULD BE THAT THE ISSUE BE REMANDED BACK TO THE FILE OF T HE CHIEF COMMISSIONER OF INCOME TAX, LUDHIANA FOR RE-ADJUDICATING TH E ISSUE AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. THE S AID PRAYER, IT WAS SUBMITTED, WAS SUPPORTED BY GROUND NO. 2 AND 2.1 FILED IN THE PRESENT APPEAL. THE SAID GROUNDS ARE REPRODUCED HEREUNDER : 2. THAT THE LD. CHIEF COMMISSIONER OF INCOME TAX LUDHI ANA IS NOT JUSTIFIED IN DECIDING THE CASE EXPARTE WITHOUT GOING INTO THE MERITS OF THE CASE. THE RULE OF 'AUDI ALTERM PARTAM ' I.E. NO MAN SHOULD BE CONDEMNED UNHEARD HAS COMPLETELY BEEN IGN ORED. 2.1 THAT ONLY ONE NOTICE WAS ISSUED TO THE APPELLANT AN D THE OFFICE COULD NOT BE ATTENDED BY THE REPRESENTATIVE DUE TO HIS ILL HEALTH. 3. CONSIDERING THE REQUEST, THE CIT-DR MR. RAVI SARANGAL, P RESENT IN THE COURT WAS REQUIRED TO GO THROUGH THE RECORD. ACC ORDINGLY, A PASS OVER 2 WAS GIVEN. IN THE SECOND ROUND, THE LD. AR WAS REQUIRED TO ADDRESS THE FACTS. THE LD. AR SUBMITTED THAT BEFORE THE PASSING OF THE ORDER, ONLY ONE OPPORTUNITY WAS GIVEN BY THE LD. CHIEF CIT, LUDHIANA I.E. ON 10.09.2015. AS PER RECORD, IT WAS SUBMITTED NOTICE DATED 04.09.2015 W AS STATED TO HAVE BEEN ISSUED. THE SAID NOTICE, IT WAS SUBMITTED, HAD BEEN RECEIVED AFTER THE DATE OF HEARING. ACCORDINGLY, THE IMPUGNED ORDER HAVING B EEN PASSED WITHOUT HEARING THE ASSESSEE, IT WAS SUBMITTED, MAY BE R ECALLED. IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, THE ADJOURN MENT SOUGHT BY REVENUE WAS REJECTED AND THE APPEAL WAS ARGUED BY CI T-DR MR. R.SARANGAL PRESENT IN THE COURT. THE LD. AR ADDRESSING THE FACTS O F THE CASE, DREW ATTENTION TO THE FACT THAT THE APPLICATION WAS FILED ON 29 .04.2014. THE ACCOUNTS OF THE ASSESSEE ARE SUBJECT TO AUDIT AND BY OVER-SIGHT, THE AUDIT REPORT WAS SUBMITTED IN FORM NO. 10B INSTEAD OF FORM NO. 10BB O F THE ACT. THE APPLICATION IN THE FACTS OF THE PRESENT CASE, IT WAS SU BMITTED HAS BEEN FILED BEFORE THE ITO, PATIALA. THEREAFTER, IT WAS TRANSFERRED ADMINISTRATIVELY TO CHANDIGARH AND THEN TRANSFERRED TO LUDHIANA AND AT NONE OF THESE STAGES, ANY CLERICAL OR TYPOGRAPHICAL MISTAKE WAS POINTED OUT. 4. THE LD. CIT-DR, CONSIDERING THE BRIEF PAPER BOOK FILED IN THE PRESENT APPEAL, SUBMITTED THAT AS PER THE STATEMENT OF THE ASSE SSEE THAT THE AUDIT REPORT FOR THE FINANCIAL YEAR 31.03.2012, 31.03.2013 AND 31.0 3.2014 WERE ENCLOSED ALONGWITH THE APPLICATION FILED TO THE ITO, WARD-3, P ATIALA AS IS EVIDENT FROM PAGES 7 AND 8 OF THE PAPER BOOK. ACCORDIN GLY, IT WAS HIS SUBMISSION THAT HE WOULD HAVE NO OBJECTION IF THE ISSUE IS RESTORED IN ORDER TO GRANT THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH, WE ARE OF THE VIEW THAT IN THE PECULIAR FACTS AND C IRCUMSTANCES OF THE CASE, THE IMPUGNED ORDER CANNOT BE UPHELD. RIGHT T O BE HEARD IS AN IMPORTANT RIGHT TO WHICH THE ASSESSEE IS ENTITLED TO. THE IMPUGNED ORDER HAVING BEEN PASSED EXPARTE GIVING ONLY ONE OPPORTUNITY AND THAT ALSO NOT AN EFFECTIVE OPPORTUNITY AS THE TIME GAP BETWEEN ISSUANCE OF NOTICE AND DATE OF HEARING SHOULD HAVE BEEN REASONABLE. EVEN OTHER WISE, THE ORDER HAVING BEEN PASSED ON 23.09.2015 EVIDENTLY DEMONSTRATES THAT THE ASSESSEE COULD HAVE BEEN PROVIDED ANOTHER OPPORTUNITY. ACCORDINGLY, IN VIEW OF THE ABOVE, THE IMPUGNED ORDER IS SET ASIDE BACK T O THE FILE OF THE CHIEF COMMISSIONER OF INCOME TAX, LUDHIANA WITH THE DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASS ESSEE A 3 REASONABLE OPPORTUNITY OF BEING HEARD. SAID ORDER WAS PR ONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH MAY,2017. SD/- SD/- (ANNAPURNA GUPTA) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSTT. REGISTRAR ITAT,CHANDIGARH.