M/s Emmbros Auto Comp. Limited,, Nalagarh V. ITO, Solan

ITA 983/CHANDI/2009

• Counselvise Citation: 98321514 RSA 2009
• Duration Of Justice: 1 year(s) 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 03-10-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 13-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K SAINI
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

1 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. 982/CHD/2009 ASSESSMENT YEAR: 2006-07 M/S EMMBROS EXPORTS, VS. THE ITO, WARD-1, TEHSIL-NALAGARH, SOLAN H.P. PAN NO. AABFE 1992 N & ITA NO. 983/CHD/2009 ASSESSMENT YEAR: 2006-07 M/S EMMBROS AUTO COMP LTD., VS. THE ITO, WARD-1, TEHSIL-NALAGARH, SOLAN H.P. PAN NO. AAACE-3489-Q (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI N.K.SAINI DATE OF HEARING : 3.10.2011 DATE OF PRONOUNCEMENT : 5.10.2011 ORDER PER H.L.KARWA, VP BOTH THESE APPEALS BY THE ASSESSEES ARE DIRECTED A GAINST THE ORDER OF CIT(A), SHIMLA DATED 3.8.2009 RELATING TO ASSESSMEN T YEAR 2006-07. 2. THESE TWO APPEALS BY DIFFERENT ASSESSEES WERE HE ARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2 3. COMMON GROUNDS NOS. 1 & 2 OF THE APPEALS ARE AS UNDER:- 1. THAT THE IMPUGNED ORDER IS BAD IN LAW AND CONTRARY TO THE FACTS OF THE CASE. THE CIT(A), SHIMLA HAS NOT APPRECIATED THE FACTS AND LAW IN THE CORRECT MANNER AND IN ACCORDANCE WITH THE STATUTE. 2. THAT THE ORDER PASSED BY THE CIT(A) HAS BEEN PASSED EX-PARTE, WITHOUT GIVING ANY OPPORTUNITY OF BEING HEARD, WHICH IS AGAINST THE NATURAL JUSTICE AND THE SETTLED LAW IN THIS REGARD. THE ORDER IS THUS BAD IN LAW AND IN FACTS. 4. WE HAVE HEARD SHRI N.K.SAINI, LD. DR AT LENGTH A ND HAVE ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT VIDE IMPUGNED ORDERS, THE CIT(A) HAS DISMISSED THE APPEALS OF THE ASSESSEES WITHOUT CONSIDERING THE FACTS AND GROUNDS RAISED BY THE ASS ESSEES. THE CIT(A) OBSERVED THAT THE ASSESSEE HAS FAILED TO PUT IN AN APPEARANCE ON THE VARIOUS DATES OF HEARING. THE CIT(A) PROCEEDED TO DISMISS THE APPEALS FOR NON PROSECUTION RELYING ON THE FOLLOWING DECISI ONS. I) CIT VS B.N. BHATTACHARJEE & ANOTHER(1979) 118 ITR 461 (SC) II) CIT VS MULTIPLAN INDIA (P.) LTD (DELHI) (1991) 38 ITD 320 III) ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT (1997) 223 ITR 480 (M.P.) 5. WE FIND THAT THE ISSUE IS SQUARELY COVERED IN FA VOUR OF THE ASSESSEE AND AGAINST THE REVENUE BY THE DECISION OF THE ITAT , AHEMDABAD BENCH C IN THE CASE OF GURJRAT THEMIS BIOSYN LTD V JCIT {2000) 74 ITD 339 (AHD). WHILE DECIDING A SIMILAR ISSUE, THE ITAT, A HMEDABAD BENCHC HELD AS UNDER:- 3 3. WE HAVE CAREFULLY CONSIDERED THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS SUBMISSIONS MA DE BEFORE US. THE IMPUGNED ORDER PASSED BY THE CIT(A) IS CLEARLY VIOLATIVE OF THE EXPRESS PROVISIONS OF SECT ION 250(6), WHICH PROVIDES THAT THE APPELLATE ORDERS OF THE CIT(A) ARE TO STATE THE POINTS ARISING IN THE APPEA L, THE DECISION OF THE AUTHORITY THEREON AND THE REASONS F OR SUCH DECISION. THE UNDERLYING RATIONALE OF THE PROVISION IS THAT SUCH ORDERS ARE SUBJECT TO FURTHER APPEAL TO THE AP PELLATE TRIBUNAL. SPEAKING ORDER WOULD OBVIOUSLY ENABLE A P ARTY TO KNOW PRECISE POINTS DECIDED IN HIS FAVOUR OR AGAINS T HIM. ABSENCE OF THE FORMULATION OF THE POINT FOR DECISIO N FOR WANT OF CLARITY IN A DECISION UNDOUBTEDLY PUTS A PA RTY IN QUANDARY. SECTION 250(6) EXPRESSLY EMBODIES THE PRI NCIPLES OF NATURAL JUSTICE AND SUCH A PROVISION IS CLEARLY MANDATORY IN NATURE. THE IMPUGNED ORDER PASSED BY T HE COMMISSIONER (APPEALS) IN VIOLATION OF THE PROVISIO NS OF SECTION 250(6) CANNOT, THEREFORE, BE SUSTAINED. REG ARDING THE DECISIONS OF THE DELHI BENCH OF THE TRIBUNAL IN MULTIPLAN INDIA (P.) LTD.'S CASE (SUPRA) CITED BY T HE LD. CIT(A), WE FIND THAT THE SAID DECISION IS CLEARLY DISTINGUISHABLE. SECTION 254 REFERRING TO THE ORDER S OF THE TRIBUNAL CONFERS PLENARY JURISDICTION ON THE TRIBUN AL IN THE MATTER OF PASSING ORDERS UNDER SECTION 254(1). THER E IS NO SUCH EXPRESS STIPULATION IN SECTION 254 AS CONTAINE D UNDER THE PROVISIONS OF SECTION 250(6) RELATING TO THE OR DERS OF FIRST APPELLATE AUTHORITY. THEREFORE, RELIANCE PLAC ED BY THE CIT(A) ON MULTIPLAN INDIA (P.) LTD.'S CASE (SUPRA) IS ENTIRELY MISPLACED. SIMILARLY, THE CASE OF ESTATE O F LATE TUKOJIRAO HOLKAR (SUPRA) CITED BY THE LD. CIT(A) IS DISTINGUISHABLE AND DOES NOT SUPPORT THE VIEW TAKEN BY THE CIT(A). 4. FOR THE REASONS INDICATED ABOVE, WE HEREBY SET A SIDE THE IMPUGNED ORDER OF THE CIT(A) AND DIRECT THE CIT(A) TO DISPOSE OF THE APPEAL OF THE ASSESSEE AFRESH AFTER ALLOWING PROPER OPPORTUNITY IN ACCORDANCE WITH LAW. 4 6. RESPECTFULLY FOLLOWING THE DECISION OF THE ITAT, AHD BENCH IN THE CASE OF GUJARAT TEHMISIS BIOSYN LTD VS. JCIT (SUPRA ), WE SET ASIDE THE IMPUGNED ORDERS DATED 3.8.2009 PASSED BY THE CIT(A) , SHIMLA AND DIRECT THE CIT(A) TO DISPOSE OF BOTH THE APPEALS OF THE AS SESSEES AFRESH AFTER ALLOWING PROPER OPPORTUNITY OF BEING HEARD IN THE M ATTER. 7. FOR STATISTICAL PURPOSES, BOTH THE APPEALS ARE A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 5 TH DAY OF OCTOBER, 2011. SD/- SD/- (MEHAR SINGH) (H.L.KARWA) ACCOUNTANT MEMBER VICE PRESIDENT DATED : 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