GULAMHUSAIN K. KUSKIWALA, V. THE ITO, SABARKANTHA, WARD-4,

ITA 891/AHD/2009

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9065 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 09-09-2009
• Assessment Year: 2005-2006
• Appeal Filed On: 20-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M C
• Assessee Lawyers: M K PATEL
• Keywords: Opportunity of being heard; Principle of natural justice; Right to appeal; Condonation of delay; Set aside

Judgement Text

IN THE INCOME_TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI H.L.KARWA AND SHRI N.S.SAINI ITA NO. 891/AHD/2009 (ASSESSMENT YEAR : 2005-06) GULAMHUSEN K. KUSHKIWALA PROP: OF K.K.FOOD INDUSTRIES SABALPUR, TAL. MODASA, DIST. SABARKANTHA. VS. THE ITO, SABARKANTHA WARD-4, MODASA. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI M.K.PATEL, A.R. RESPONDENT BY : SHRI M.C.PANDIT, SR.D.R. ( (( ( )/ )/)/ )/ ORDER PER KARWA, JM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A)-X, AHMEDABAD DATED 15.12.2008 RELATING TO AS SESSMENT YEAR 2005-06. 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLLOWING G ROUNDS: 1. THAT THE LEARNED CIT(A) HAS GRIEVOUSLY ERRED IN LA W AND ON FACTS IN DISMISSING THE APPEAL IN LIMINE INSTEAD OF DECID ING THE APPEAL ON MERITS. 2. THAT ON FACTS, AND INTEREST OF JUSTICE, THE APPEAL B E SET-ASIDE TO CIT(A) FOR DECISION ON MERITS. 3. AT THE VERY OUTSET, SHRI M.K.PATEL, THE LEARNED COUNSEL FOR T HE ASSESSEE SUBMITTED THAT THE CIT(A) HAS PASSED THE IMPUGNED ORDER WITHOUT AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HE FURTHER SUBMITTED THAT THE CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL IN LIMINE INSTEAD OF DECIDING THE APPEAL ON M ERITS. HE, THEREFORE, 2 SUBMITTED THAT THE ORDER OF THE CIT(A) MAY BE SET ASI DE AND THE MATTER MAY BE RESTORED TO THE CIT(A) WITH A DIRECTION TO DE CIDE THE APPEAL AFRESH ON MERITS AFTER AFFORDING DUE AND REASONABLE OP PORTUNITY OF BEING HEARD TO THE ASSESSEE. SHRI M.K.PATEL, THE LEARNED COUNSE L FOR THE ASSESSEE ALSO SUBMITTED THAT AN OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE TO FILE AN APPLICATION FOR CONDONATION OF DELAY IN FILING THE APPEAL, IF ANY, BEFORE THE CIT(A). 4. WE HAVE HEARD LEARNED REPRESENTATIVES OF BOTH THE PARTIES AT LENGTH. IT IS OBSERVED THAT LEARNED CIT(A) HAS DECIDED THE APPEAL OF THE ASSESSEE EX PARTE. AFTER PERUSAL OF THE IMPUGNED ORDER, IT WOULD BE CLEAR THAT LEARNED CIT(A) HAS NOT PROVIDED AN ADEQUATE OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE APPEAL. IN OUR OPINION, THE LEARNED CIT(A) SHOULD HAVE AFFORDED ADEQUATE OPPORT UNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE APPEAL. IN T HE CASE OF RADHIKA CHARAN BANERJEE VS. SAMBALPUR MUNICIPALITY, AIR (19 79) ORISSA 69, THE HON'BLE ORISSA HIGH COURT HELD THAT A RIGHT OF APPEAL W HEREVER CONFERRED INCLUDES A RIGHT OF BEING AFFORDED AN OPPORTUNITY OF BEING HEARD, IRRESPECTIVE OF THE LANGUAGE CONFERRING SUCH RIGHT. THA T IS A PART AND PARCEL OF THE PRINCIPLE OF NATURAL JUSTICE. WHERE AN A UTHORITY 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. 5. IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE ALSO DI RECT THE CIT(A) TO PROVIDE AN OPPORTUNITY TO THE ASSESSEE FOR FILING AN AP PLICATION FOR CONDONATION OF DELAY. THUS, CONSIDERING THE ENTIRE FACTS OF THE PRESENT CASE, W E THINK IT PROPER TO SET ASIDE THE ORDERS OF LEARNED CIT(A) IN TOTO AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO DECIDE THE APPE AL AFRESH ON MERITS IN ACCORDANCE WITH LAW AFTER AFFORDING DUE AND REASONABLE OPPORTUNITY OF 3 BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICA L PURPOSES. THE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 11.9. 2009. SD/- (N.S.SAINI) ACCOUNTANT MEMBER SD/- (H.L.KARWA) JUDICIAL MEMBER AHMEDABAD, DATED:11.9.2009 PSP* COPY TO : (1) THE ASSESSEE (2) THE ASSESSING OFFICER (3) THE CIT(A) CONCERNED, (4) THE CIT, CONCERNED, (5) THE DR, ITAT, AHMEDABAD, (6) GUARD FILE. BY ORDER ASSTT. REGISTRAR / D EPUTY REGISTRAR ITAT, AHMEDABAD BENCHES AHMEDABAD.