SMT. MANISHA NAHAR, Dhar V. THE ITO, Dhar

ITA 811/IND/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0439 (ITAT-INDORE)
• Duration Of Justice: 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 26-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: S S SOLANKI
• 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. 811/IND/2014 A.Y. : 2004-05 SMT.MANISHA NAHAR, NAGDA DISTRICT, DHAR ITO, DHAR VS. APPELLANT RESPONDENT PAN NO. ACPPN7863H APPELLANT BY : SHRI S.S.SOLANKI, C. A. RESPONDENT BY : SHRI R.A.VERMA, SR. DR DATE OF HEARING : 0 2 .07.2015 DATE OF PRONOUNCEMENT : 0 2 .07.2015 -: 2: - 2 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-I, INDORE, DATED 22.08.2014 FOR THE ASSE SSMENT YEAR 2004-05. 2. THE APPEAL IS DELAYED BY 09 DAYS. TO THIS EFFECT , THE LD. COUNSEL FOR THE ASSESSEE HAS FILED AN AFFIDAVIT STA TING THAT THE APPEALS WERE OF SMT. MANISHA NAHAR AND SHRI MANSUKH BHAI PATEL WERE REFERRED BY THE SAME CONSULTANT AND HE G AVE BOTH THE PAPERS AT THE SAME TIME RESULTING IN DELAY OF F ILING THE APPEAL BY 9 DAYS. THE LD. COUNSEL FOR THE ASSESSEE PRAYED THIS BENCH TO CONDONE THE DELAY OF 9 DAYS. 3. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE P ARTIES. I HAVE ALSO PERUSED THE AFFIDAVIT SWORN IN BY THE LD. COUNSEL FOR THE ASSESSEE. I FIND THAT THERE WAS REASONABLE CAUS E IN FILING THE APPEAL. I , THEREFORE, CONDONE THE DELAY. 4. THE LD. CIT(A) MENTIONED IN HIS ORDER THAT FIVE OPPORTUNITIES WERE GIVEN TO ASSESSEE FROM 19.08.201 1 TO -: 3: - 3 22.08.2014 AND DATES OF HEARING WERE FIXED ON 19.08 .2011, 23.09.2013, 11.10.2013, 20.06.2014 AND 22.08.2014, BUT NO SUBMISSION WAS EVER MADE EXCEPT SEEKING ADJOURNMENT THAT TOO ON FRIVOLOUS GROUNDS. 5. DURING THE COURSE OF HEARING, THE LD. AUTHORIZED REPRESENTATIVE CONTENDED THAT THE LD. CIT(A) ERRED IN DISMISSING THE APPEAL FOR NON PROSECUTION AND THE G ROUNDS RAISED IN APPEAL DESERVES TO BE DECIDED ON MERITS. THE DISMISSAL OF APPEAL SO MADE BEING WRONG AND THE SAM E REQUIRES TO BE DECIDED ON MERITS. THE LD. COUNSEL F OR THE ASSESSEE HAS PRAYED THIS BENCH TO RESTORE BACK THE APPEAL TO THE AO. 6. THE LD. SENIOR D.R. RELIED UPON THE ORDER OF LD. CIT(A) AND DID NOT OBJECT IF THE APPEAL IS RESTORED TO THE AO. 7. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. I FIND THAT THE LD. CIT(A) HAS DISMISSED THE APPEAL B Y APPLYING THE DECISION IN THE CASE OF CIT VS. MULTIPLAN AND O THER CASES. THE PRINCIPLE OF AUDI ALTERAM PARTEM IS THE BASIC CONCEPT OF NATURAL JUSTICE. THE EXPRESSION AUDI ALTERAM PARTEM IMPLIES -: 4: - 4 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 PA RTY, REPORT OF ENQUIRY TO BE SHOWN TO THE OTHER PARTY AND REASONED DECISIONS OR SPEAKING ORDERS. I FIND THAT THE RIGHT OF HEARIN G 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 ALTERM 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 8. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 02ND JULY, 2015. SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 02ND JULY, 2015. CPU* 02.7