M/s. Qureshi Construction Company, CHURU V. ITO, CHURU

ITA 99/JODH/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9637 (ITAT-JODHPUR)
• Duration Of Justice: 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 16-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MEENA
• Keywords: Principle of natural justice

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER ITA NO. 99 /JODH/201 7 ASSESSMENT YEAR:20 10 - 2011 M/S QURESHI CONSTRUCTION COMPANY VS. THE ITO C/O PRE M KHANDELWAL (ADVOCATE) WARD - 2 MAIN MARKET, NEAR WHITE CLOCK TOWER CHURU CHURU PAN NO. AAAFQ1652Q (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SH. S.K. MEENA DATE OF HEARING : 0 2 /0 3 /2017 DATE OF PRONOUNCEMENT : 03/03/2017 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DT. 06/10/2016 OF LD. CIT(A) - 35 , NEW DELHI / CAMP OFFICE AT JAIPUR PERTAINING TO 20 10 - 1 1 , ASSESSMENT YEAR ON VARIOUS GROUNDS. 2. A T THE TIME OF HEARING NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE. HOWEVER AN ADJOURNMENT APPLICATION WAS PLACED ON RECORD. THE APPEAL WAS PASSED OVER T W ICE . DESPITE THIS NO ONE WAS PRESENT IN SUPPORT OF THE APPLICATION. CONSIDERING THE MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LD. SR. DEPARTMENTAL REPRESENTATIVE IT WAS CONSIDERED APPROPRIATE TO PROCEED WITH THE PRESENT APPEAL EX - PARTE QUA THE ASSESSEE APPELLANT ON MERITS. ACCORDINGLY THE APPLICATION WAS REJECTED, WITH THE NOTING APPEAL ALLOWED FOR STATISTICAL PURPOSES. RESTORED TO CIT(A) . THE SAID DECISION WAS TAKEN IN VIEW OF THE FACT THAT THE IMPUGNED ORDER IS AN EXPARTE ORDER WHEREIN IT APPEARS THAT TWO 2 SPECIFIC OPPORTUNIT IES WERE GIVEN TO THE ASSESSEE WHICH WERE NOT AVAILED OF . T HE ORDER IT WAS NOTICED WAS SILENT ON THE ASPECT AS TO HOW THE NOTICES WERE SENT. ACCORDINGLY CONSIDERING THE FACTS THAT THE GRIEVANCE OF THE ASSESSEE CONTINUES WHEREIN THE ADDITION MADE BY THE ASSESSING OFFICER CHALLENGED IN APPEAL BEFORE THE LD. CIT(A) WERE UPHELD ON THE GROUND OF NON REPRESENTATION AS ASSESSEE DID NOT PARTICIPATE IN THE PROCEEDINGS . A CCORDINGLY IN THE INTEREST S OF SUBSTANTIAL JUSTICE SINCE THE IMPUGNED ORDER HAS BEEN PASSED WITHOUT HEARING THE ASSESSEE THE SAME IS SET ASIDE BACK TO THE FILE OF LD. CIT(A) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. RIGHT TO BE HEARD IS AN IMPORTANT RIGHT TO WHICH A PARTY WHO IS FACED WITH AN ADVERSE VIEW IS ENTITLED TO AUDI ALTERAM PARTEM IS ONE OF THE MOST FAMOUS AND CELEBRATED RULE OF NATURA L JUSTICE. IT HAS BEEN PROTECTED AND MANDATED BY SUB SECTION(2) OF SECTION 250 OF THE ACT, ALSO. THE PRINCIPLES OF NATURAL JUSTICE ARE THOSE WHICH HAVE BEEN LAID OUT BY THE COURTS AS BEING THE MINIMUM PROTECTION OF THE RIGHTS OF AN INDIVIDUAL AGAINST THE A RBITRARY PROCEDURE THAT MAY BE ADOPTED BY A JUDICIAL, QUASI - JUDICIAL AND ADMINISTRATIVE AUTHORITY WHILE MAKING AN ORDER AFFECTING THOSE RIGHTS. A CAREFUL PERUSAL OF THE CONSISTENT JUDGEMENTS OF THE APEX COURT WOULD SHOW THAT IT HAS CONSISTENTLY BEEN HELD T HAT THE RULES OF NATURAL JUSTICE ARE NOT EMBODIED RULES AND THE SAID PHRASE IS NOT AN CANNOT BE CAPABLE OF A PRECISE DEFINITION. THE UNDERLYING PRINCIPLE OF NATURAL JUSTICE EVOLVED UNDER THE COMMON LAW IS TO CHECK ARBITRARY EXERCISE OF POWER BY THE STATE OR ITS FUNCTIONARIES. ACCORDINGLY, THE PRINCIPLE BY ITS VERY NATURE IMPLIES THE DUTY TO ACT FAIRLY I.E. FAIR PLAY IN ACTION MUST BE EVIDENT AT EVERY STAGE. FAIR PLAY DEMANDS THAT NOBODY SHALL BE CONDEMNED UNHEARD. IN THE CELEBRATED JUDGEMENT OF THE APEX C OURT IN THE CASE OF A.K.KRAIPAK - VS - UNION OF INDIA (1969)2SCC 262, IT IS OBSERVED THAT THE AIM OF RULES OF NATURAL JUSTICE IS TO SECURE JUSTICE OR TO PUT IT NEGATIVELY TO PREVENT MISCARRIAGE OF JUSTICE. THE SAID RULES ARE MEANS TO AN END AND NOT AN END IN T HEMSELVES AND THOUGH IT IS NOT POSSIBLE TO MAKE AN EXHAUSTIVE CATALOGUE OF SUCH RULES HOWEVER IT CAN BE READILY SAID THAT 3 THERE ARE TWO BASIC MAXIMS OF NATURAL JUSTICE NAMELY AUDI ALTERAM PARTEM AND NEMO JUDEX IN RE SUA . IN THE PRESENT FACTS OF THE CAS E WE ARE CONCERNED WITH THE MAXIM AUDI ALTERM PARTEM WHICH AGAIN MAY HAVE MANY FACETS TWO OF THEM (A) NOTICE OF THE CASE TO BE MET; AND (B) OPPORTUNITY TO EXPLAIN. THEIR LORDSHIPS HAVE CAUTIONED THAT THESE RULES CANNOT BE SACRIFICED AT THE ALTAR OF THE A DMINISTRATIVE CONVENIENCE OR CELEBRITY. THUS, CONSIDERING THE AFORE - MENTIONED STATUTORY PROVISION AND THE PRINCIPLES OF NATURAL JUSTICE, THE ISSUE IS RESTORED BACK TO THE FILE OF THE CIT(A) TO MAKE GOOD THE STATUTORY DEFICIT. THE ADJOURNMENT APPLICATION OF THE ASSESSEE ACCORDINGLY IN VIEW OF THE SAME IT STOOD REJECTED WITH THE NOTING APPLICATION REJECTED. RESTORED TO CIT(A) . IT IS HOPED THAT THE OPPORTUNITY SO PROVIDED IN GOOD FAITH IS UTILIZED FAIRLY BY THE ASSESSEE BY PARTICIPATING IN THE PROCEEDINGS BE FORE THE CIT(A). IT IS MADE CLEAR THAT IN THE EVENTUALITY OF ABUSE OF THE TRUST REPOSED IN ASSESSEE THE LD. CIT(A) WOULD BE AT LIBERTY AND PASS A SPEAKING ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. T HE ORDER STOOD PRONOUNCED ON THE DATE OF HEARING ITSELF IN THE OPEN COURT . 3. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED ON 03/03/2017 IN THE OPEN COURT. SD/ - (DIVA SINGH) JUDICIAL MEMBER DATED: 03/03/2017 AG COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT