Bhawani Trading Co., Kurukshetra V. A.O, Kurukshetra

ITA 817/CHANDI/2011

• Counselvise Citation: 81721514 RSA 2011
• Duration Of Justice: 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 18-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K SAINI
• Keywords: Opportunity of being heard; Principle of natural justice; Right to appeal; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES A CHANDIGARH BEFORE SHRI H.L.KARWA, HON'BLE, VICE PRESIDENT AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER ITA NO. 817/CHD/2011 ASSESSMENT YEAR: 2007-08 M/S BHAWANI TRADING COMPANY, VS. THE ITO, WARD-3, KURUKSHETRA KURUKSHETRA PAN NO. AAHFB7567Q (APPELLANT) (RESPONDENT) APPELLANT BY : S/SHRI SHRI TEJ MOHAN SINGH & SHRI AJAY JAIN RESPONDENT BY : SHRI N.K.SAINI DATE OF HEARING : 03.10.2011 DATE OF PRONOUNCEMENT : 03.10.2011 ORDER PER H.L.KARWA, VP THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF CIT(A), KARNAL DATED 13.5.2011 RELATING TO ASSESSME NT YEAR 2007-08. 2. IT IS OBSERVED THAT THERE IS A DELAY OF ONE DAY IN FILING THE APPEAL. SHRI TEJ MOHAN SINGH, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ABOVE DELAY IS OCCURRED DUE TO THE REASONS BEYOND T HE CONTROL OF THE ASSESSEE AND, THEREFORE, THE SAME MAY BE CONDONED. IT IS WELL SETTLED LAW THAT THE JURISDICTION TO CONDONE DELAY SHOULD BE EX ERCISED LIBERALLY. 2 MATTER RELATING TO CONDONATION OF DELAY SHOULD BE J UDGED BROADLY AND NOT IN A PEDANTIC MANNER. CONSIDERING THE FACTS OF THE PRESENT CASE AND ALSO THE SETTLED LEGAL POSITION, WE CONDONE THE DELAY AN D ADMIT THE APPEAL FOR ADJUDICATION. 3. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLL OWING GROUNDS:- 1. THAT THE LD. CIT(A) HAS GROSSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF THE ASSESSING OFF ICER IN INVOKING OF SECTION 145(3), AND NOT ACCEPTING T HE FINANCIAL RESULTS OF ASSESSEE BASED ON THE BOOKS OF ACCOUNT AND STOCK REGISTERS MAINTAINED, WITHOUT BRINGING ANY DEFICIENCY, SHORT COMING OR ANY MATERI AL EITHER FROM BOOKS OF ACCOUNTS, FROM OUTSIDE OR ANY CORROBORATIVE EVIDENCE CONTRARY TO WHAT IS ACCOUNTE D FOR IN THE BOOKS OF ACCOUNT WHICH ARE MAINTAINED IN THE REGULAR COURSE OF BUSINESS OF THE APPELLANT. 2. LD. CIT(A) HAS FURTHER ERRED IN SUSTAINING ADDITION OF RS. 1,96,954/- ON ACCOUNT OF SUPPRESSION OF SALES I N PADDY HUSK WHICH WAS MADE MERELY ON THE BASIS OF COMPARISON WITH ANOTHER CASE AND WITHOUT BRINING ON RECORD ANY POSITIVE MATERIAL. 4. AT THE VERY OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE CIT(A) HAS DECIDED THE APPEAL OF THE ASSESSEE EX-PA RTE OBSERVING AS UNDER:- THE APPEAL WAS FIXED FOR HEARING ON 13.5.2011 AS P ER THIS OFFICE NOTICE DATED 30.4.2011 WHICH WAS DULY SERVED ON 3.5.2011. NEITHER ANYBODY ATTENDED NOR A NY WRITTEN COMMUNICATION WAS RECEIVED IN THIS OFFICE O N THAT DATE. SUFFICIENT TIME AS SUCH HAS BEEN ALLOWE D TO THE APPELLANT TO PURSUE THE APPEAL WHICH HAS NOT BE EN AVAILED OF AND HENCE THE APPEAL IS DECIDED ON MERIT S. 3 5. SHRI TEJ MOHAN SINGH, LD. COUNSEL FOR THE ASSESS EE SUBMITTED THAT THE LD. CIT(A) HAS NOT PROVIDED ADEQUATE OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE APPEAL. HE, THERE FORE, SUBMITTED THAT THE ORDER OF LD CIT(A) MAY BE SET ASIDE AND THE MATTER BE REMANDED TO CIT(A) WITH A DIRECTION TO DECIDE THE APPEAL OF THE ASSESS EE AFRESH ON MERITS IN ACCORDANCE WITH LAW. 6. SHRI SHRI N.K.SAINI, LD. DR FOR THE REVENUE STRO NGLY OPPOSED THE ABOVE CONTENTION OF SHRI TEJ MOHAN SINGH, LD. COUNS EL FOR THE ASSESSEE. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE PER USED THE ORDER OF CIT(A). WE FIND THAT THE LD. CIT(A) HAS DECIDED TH E APPEAL OF THE ASSESSEE EX-PARTE. AFTER PERUSING THE IMPUGNED ORD ER, IT WOULD BE CLEAR THAT THE LD. CIT(A) HAS NOT PROVIDED ADEQUATE OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE APPEAL. IN OUR OPINION, THE LD. CIT(A) SHOULD HAVE AFFORDED ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE APPEAL. IN THE CASE OF RADHIKA CHARAN BANERJEE VS. SAMBALPUR MUNICIPALITY, AIR (1979) ORISSA 69, THE H ON'BLE ORISSA HIGH COURT HELD THAT A RIGHT OF APPEAL WHEREVER CONFERRE D INCLUDES A RIGHT OF BEING AFFORDED AN OPPORTUNITY OF BEING HEARD, IRRES PECTIVE OF THE LANGUAGE CONFERRING SUCH RIGHT. THAT IS A PART AND PARCEL O F THE PRINCIPLE OF NATURAL JUSTICE. WHERE AN AUTHORITY IS REQUIRED TO ACT IN A QUASI-JUDICIAL CAPACITY, IT IS IMPERATIVE TO GIVE THE APPELLANT AN ADEQUATE OPPORTUNITY OF BEING HEARD BEFORE DECIDING THE APPEAL. THUS, CONSIDERIN G THE ENTIRE FACTS OF THE PRESENT CASE, WE THINK IT PROPER TO SET ASIDE THE O RDER OF THE LD. CIT(A) IN TOTO AND RESTORE THE MATTER TO HIS FILE WITH A DIRE CTION TO DECIDE THE APPEAL AFRESH ON MERITS IN ACCORDANCE WITH LAW AFTER AFFOR DING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSES SEE. WE ALSO DIRECT THE 4 CIT(A) TO DECIDE THE APPEAL PREFERABLY WITHIN TWO M ONTHS FROM THE DATE OF RECEIPT OF ORDER. AT THIS JUNCTURE, WE ALSO DIR ECT THE ASSESSEE TO COOPERATE AND ATTEND THE HEARING BEFORE THE CIT(A). IN VIEW OF THE ABOVE, NO FINDINGS ARE BEING GIVEN O N MERITS. 8. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 3 RD DAY OF OCTOBER, 2011. SD/- SD/- (MEHAR SINGH) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT DATED : 3 RD OCTOBER, 2011 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR TRUE COPY BY ORDER ASSISTANT REGISTRAR, ITAT, CHANDIGARH