M/s. Gold Star Marbles Private Limited, Udaipur V. DCIT, Central Circle-1, Udaipur

ITA 97/JODH/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6917 (ITAT-JODHPUR)
• Duration Of Justice: 1 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 28-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K SINGI LD
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside; Audi alteram partem
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI N.K.SAINI, VICE PRESIDENT AND SHRI N.K. CHOUDHRY, JUDICIAL MEMBER ITA NO.97/JODH/2019 ASSESSMENT YEAR: 2013-14 M/S GOLD STAR MARBLES PVT LTD , SP-3, UDHYOG VIHAR, SUKHAR, UDAIPUR (RAJ) [PAN :AAACG5305R] VS. DCIT, CENTRAL CIRCLE-, UDAIPUR (APPELLANT) (RESPONDENT) APPELLANT BY : NONE (W/S SH. SUDHIR MEHTA) RESPONDENT BY : SHRI P.K. SINGI, LD. DR DATE OF HEARING: 03/05/2019 DATE OF PRONOUNCEMENT: 03/05/2019 ORDER PER N.K.CHOUDHRY THE INSTANT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE/APPELLANT AGAINST THE ORDER DATED 12-01-2019 IMPUGNED HEREIN PASSED BY THE LD. CIT(A)-AJMENR, WHEREBY THE ORDER DATED 16-02-20 18 PASSED U/S 154 OF THE I.T. ACT, 1961 (HEREINAFTER CALLED AS TH E 'ACT') BY THE DCIT, CENTAL CIRCLE-1, UDAIPUR, HAS BEEN AFFIRMED. 2. AT THE OUTSET, IT APPEARS FROM THE IMPUGNED ORDER THAT LD. CIT(A) HAD FIXED THE APPELLANT PROCEEDINGS ON VARIO US DATES , HOWEVER, AS PER COMMENTS OF THE LD CIT(A), THE ASSESSEE WAS ALLOWED SEVERAL OPPORTUNITIES OF BEING HEARD, THERE WAS NO COMPLIAN CE . FROM THE ORDER, IT DOES NOT REFLECTS THAT THE NOTICES OF THE HEARING HAVE EVER BEEN SERVED UPON THE ASSESSEE OR NOT AND EVEN MODE OF SERVICE HAS 2 ITA NO.97/JODH/2019 M/S GOLD STAT MARBLES PVT . VS. DCIT NOT BEEN SPECIFIED, THEREFORE IT CANNOT BE PRESUMED THAT PROPER NOTICES HAVE BEEN SERVED UPON THE ASSESSEE AND IN SPITE OF RECEIVING NOTICES THE ASSESSEE DID NOT ATTEND THE PROCEEDINGS NOR FIL ED ANY WRITTEN SUBMISSION, HENCE WE HAVE TO CONSIDER AS TO WHETHER THE PRINCIPLES OF NATURAL JUSTICE HAVE COMPLIED WITH IN THE INSTANT C ASE BY GIVING PROPER AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE AS SESSEE/APPELLANT . 3. IT IS TRITE TO SAY THAT EVERY PERSON HAS THE RIGHT TO SPEAK AND BE HEARD WHEN ALLEGATIONS ARE BEING PUT TOWARDS HIM OR HER . IF NO OPPORTUNITY HAS BEEN GIVEN TO THE PARTY EFFECTED, T HEN IT SHALL AMOUNT TO VIOLATIONS OF THE PRINCIPLES OF NATURAL JUSTICE, WHICH EMBEDDED IN LATIN WORDS AUDI ALTERAM PARTEM WHICH MEANS HEA R THE OTHER SIDE, OR NO MAN SHOULD BE CONDEMNED UN-HEARD OR BOTH T HE SIDES MUST BE HEARD BEFORE PASSING ANY ORDER. THE PRINCIPLE OF A UDI ALTERAM PARTEM IS THE BASIC CONCEPT OF THE PRINCIPLE OF NATURAL JU STICE AND HAS NOT EVOLVED FROM THE CONSTITUTION BUT EVOLVED THROUGH C IVILIZATION AND MANKIND AND IS THE CONCEPT OF COMMON LAW, WHICH IMP LIES FAIRNESS, REASONABLENESS, EQUALITY AND EQUITY. IN INDIA, THE PRINCIPLES OF NATURAL JUSTICE ARE THE GROUNDS OF ARTICLE 14 AND 21 OF THE CONSTITUTION. ARTICLE 14 ENSHRINES THAT EVERY PERSON SHOULD BE TREATED EQ UALLY. IN THE LANDMARK CASE OF MANEKA GANDHI VS. THE UNION OF INDIA (1978 AIR 597) , IT HAS BEEN HELD BY CONSTITUTION BENCH OF THE APEX COURT THAT THE LAW AND PROCEDURE MUST BE OF A FAIR, JUST AND REASONABL E KIND. THE DOCTRINE ENSURES A FAIR HEARING AND FAIR JUSTICE TO BOTH THE PARTIES. UNDER THIS DOCTRINE, BOTH THE PARTIES HAVE THE RIGHT TO SPEAK. THE AIM OF THIS PRINCIPLE IS TO GIVE AN OPPORTUNITY TO THE PARTIES TO DEFEND THEMSELVES. BEFORE THE COURT, BOTH THE PARTIES ARE EQUAL AND AR E ENTITLEMENT OF EQUAL OPPORTUNITY TO REPRESENT THEM. I F THE ORDER IS PASSED BY THE AUTHORITY WITHOUT PROVIDING THE REASONABLE OPPORTUNITY OF BEI NG HEARD TO THE 3 ITA NO.97/JODH/2019 M/S GOLD STAT MARBLES PVT . VS. DCIT PERSON AFFECTED BY IT ADVERSELY WILL BE INVALID AND SHALL BE LIABLE TO BE SET ASIDE. 4. COMING TO THE INSTANT CASE, THE PRINCIPLES OF NATU RAL JUSTICE HAVE NOT BEEN FOLLOWED, AS IT IS FUNDAMENTAL PRINCIPLE OF LAW THAT NO ONE C AN BE REMAIN UN-HEARD , THEREFORE I N THE PECULIAR FACTS OF CIRCUMSTANCES OF THE CASE, WE ARE INCLINED TO SET ASIDE THE ORDER PA SSED BY THE LD. CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF T HE LD. CIT(A) FOR DECISION AFRESH, SUFFICE TO SAY WHILE AFFORDING PRO PER OPPORTUNITIES OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT THE ASSESSEE/APPELLANT TO EXTEND I TS FULL CO- OPERATION AND PARTICIPATION IN THE APPELLATE PROCEE DINGS BEFORE THE LD. CIT(A) AS AND WHEN REQUIRED AND IN CASE OF FURTHER DEFAULT, THE ASSESSEE SHALL NOT BE SUBJECTED TO ANY LENIENCY. 5. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE/A PPELLANT STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 03 .05.2019. SD/- SD/- (N.K.SAINI) ( N.K.CHOUDHRY) VICE PRESIDENT JUD ICIAL MEMBER DATED: 03/05/2019 PK/PS COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR