Anjani Land Developers, , Surat V. Dy. Commissioner of Income Tax, Central Circle-2, Surat, Surat

ITSSA 83/SRT/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2287 (ITAT-SURAT)
• Duration Of Justice: 1 year(s) 9 month(s) 27 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 21-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 24-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS ANUPAMA SINGLA
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside; Audi alteram partem
• Section: 143(3); 153A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, HON'BLE JUDICIAL MEMBER AND SHRI ARJUN LAL SAINI, HON'BLE ACCOUNTANT MEMBER . . ./ I.T(SS)A. NO.82, 83 & 84/SRT/2019 & ITA NO. 340/SRT/2019 [ [ / ASSESSMENT YEARS: 2010-11, 2011-12 & 2014-15 ANJANI LAND DEVELOPERS AT AMROLI SAYAN ROAD, GOTHAN ROAD, NR. RAILWAY STATION CROSSING, SURAT [PAN: AAQFA 6253 P] ANJANI INDUSTRIAL ESTATE, AT AMROLI SAYAN ROAD, GOTHAN ROAD, NR. RAILWAY STATION CROSSING, SURAT [ PAN: AAQFA6254L] & M/S. ANJANI DEVELOPERS 362, BALESHWAR, PALSANA, TAL. PALSANA, SURAT [PAN: AATFA4873C] VS. VS. VS. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, SURAT. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, SURAT. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, SURAT / APPELLANT /RESPONDENT [ /ASSESSEE BY SHRI ASHWIN K. PAREKH, ADVOCATE /REVENUE BY SHRI RITESH MISHRA, CIT/DR & MRS. ANUPAMA SINGLA SR. DR / DATE OF HEARING: 14.10.2021 /PRONOUNCEMENT ON: 21.10.2021 / O R D E R IT(SS)A NOS. 82 TO 84/SRT/2019 & ITA NO. 340/SRT/2019 A.YS. 2011-12, 2010-11 & 2014-15 2 PER DR. A. L. SAINI, AM: THE CAPTIONED FOUR APPEALS FILED BY DIFFERENT ASSESSEES, ARE DIRECTED AGAINST THE SEPARATE ORDERS PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS), WHICH IN TURN ARISE OUT OF SEPARATE ASSESSMENT ORDERS PASSED BY ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. SINCE IN THESE APPEALS, IDENTICAL ISSUES ARE INVOLVED, THEREFORE, THESE HAVE BEEN CLUBBED AND HEARD TOGETHER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. AT THE OUTSET ITSELF, LEARNED COUNSEL FOR THE ASSESSEE ASSAILED THE IMPUGNED ORDER BY CONTENDING THAT THE ASSESSEE COULD NOT REPRESENT HIS CASE BEFORE LD. CIT(A) AND THE ORDER BEING AN EX-PARTE ORDER, STOOD VITIATED ON ACCOUNT OF VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. LEARNED COUNSEL STATES THAT NOTICE OF HEARING WAS NOT SERVED ON THE ASSESSEE THEREFORE, ASSESSEE COULD NOT ATTEND THE HEARING BEFORE THE LD CIT(A). LEARNED COUNSEL STATES THAT ADDRESS WAS MENTIONED IN FORM NO.35, DESPITE OF THIS NOTICE OF HEARING COULD NOT BE SERVED ON THE ASSESSEE. THEREFORE, LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT IN THE INTEREST OF JUSTICE, ANOTHER OPPORTUNITY TO CONTEST THE APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY MAY BE GRANTED TO THE ASSESSEE. 4.THE LD. DR FOR THE REVENUE DEBARRED FROM OBJECTING THE STAND OF THE LD. COUNSEL. 5. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE SUBMISSION PUT FORTH ON BEHALF OF THE ASSESSEE ALONG WITH THE DOCUMENTS FURNISHED AND THE CASE LAWS RELIED UPON, AND PERUSED THE FACT OF THE CASE INCLUDING THE FINDINGS OF THE LD CIT(A) AND OTHER MATERIALS BROUGHT ON RECORD. WE NOTE THAT IN THE ASSESSEES CASE UNDER CONSIDERATION, THE ASSESSMENT WAS CARRIED OUT U/S 143(3) R.W.S. 153A OF THE ACT AND THE IMPUGNED ORDER PASSED BY THE LD. CIT(A), IS AN EX PARTE ORDER IT(SS)A NOS. 82 TO 84/SRT/2019 & ITA NO. 340/SRT/2019 A.YS. 2011-12, 2010-11 & 2014-15 3 AND NON-SPEAKING ORDER, THEREFORE, WE DO NOT WISH TO MAKE ANY COMMENTS ON THE MERITS OF THE GROUNDS RAISED BY THE ASSESSEE. 6. WE NOTE THAT THE HONBLE SUPREME COURT IN M.S.GILL VS THE CHIEF ELECTION COMMISSION 1978 AIR SC 851 HELD THE DICHOTOMY BETWEEN ADMINISTRATIVE AND QUASI-JUDICIAL FUNCTION VIS--VIS THE DOCTRINE OF NATURAL JUSTICE IS PRESUMABLY OBSOLESCENT AFTER KRAIPAK (A.K. KRAIPAK VS UOI AIR 1970 SC 150) WHICH MAKES THE WATER-SHED IN THE APPLICATION OF NATURAL JUSTICE TO ADMINISTRATIVE PROCEEDINGS. THE RULES OF NATURAL JUSTICE ARE ROOTED IN ALL LEGAL SYSTEMS AND ARE NOT ANY NEW THEOLOGY. THEY ARE MANIFESTED IN THE TWIN PRINCIPLES OF NEMO JUDEX IN PARTE SUA ( NO PERSON SHALL BE A JUDGE IN HIS OWN CASE) AND AUDI ALTERAM PARTEM (THE RIGHT TO BE HEARD). IT HAS BEEN POINTED OUT THAT THE AIM OF NATURAL JUSTICE IS TO SECURE JUSTICE. 7. WE NOTE THAT THOUGH IN MOST OF THE CASES, THE ASSESSEE DID NOT APPEAR BEFORE THE LD CIT(A) DURING THE APPELLATE PROCEEDINGS, AND A PERUSAL OF THE BODY OF THE IMPUGNED ORDER, IT IS APPARENT THAT IT IS AN EX PARTE ORDER WHICH HAS BEEN CHALLENGING BY THE ASSESSEE FOR WANT OF PROPER OPPORTUNITY, AS THE NOTICE OF HEARING COULD NOT BE SERVED ON THE ASSESSEE DURING THE APPELLATE PROCEEDINGS. 8. CONSIDERING THE ABOVE FACTS, WE NOTE THAT NOTICES OF HEARINGS WERE NOT SERVED ON ASSESSEES, THEREFORE, ASSESSEES HAVE NOT GIVEN SUFFICIENT OPPORTUNITY OF BEING HEARD AND COULD NOT PLEAD THEIR CASE SUCCESSFULLY BEFORE THE LD. CIT(A). WE NOTE THAT THE LD. CIT(A) DID NOT DISCUSS THE ASSESSEES CASE ON MERITS BASED ON THE MATERIAL AVAILABLE BEFORE HIM HENCE IT IS A VIOLATION OF PRINCIPLE OF NATURAL JUSTICE. WE NOTE THAT IT IS SETTLED LAW THAT PRINCIPLES OF NATURAL JUSTICE AND FAIR PLAY REQUIRE THAT THE AFFECTED PARTY IS GRANTED SUFFICIENT OPPORTUNITY OF BEING HEARD TO CONTEST HIS CASE. THEREFORE, WITHOUT DELVING MUCH DEEPER INTO THE MERITS OF THE CASE, IN THE INTEREST OF JUSTICE, WE RESTORE THE MATTER BACK TO THE FILE OF LD. CIT(A) FOR DE NOVO ADJUDICATION AND PASS A SPEAKING ORDER AFTER IT(SS)A NOS. 82 TO 84/SRT/2019 & ITA NO. 340/SRT/2019 A.YS. 2011-12, 2010-11 & 2014-15 4 AFFORDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, WHO IN TURN, IS ALSO DIRECTED TO CONTEST HIS STAND FORTHWITH. THEREFORE, WE DEEM IT FIT AND PROPER TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMIT THE MATTER BACK TO THE FILE OF THE LD. CIT(A) TO ADJUDICATE THE ISSUE AFRESH ON MERITS. FOR STATISTICAL PURPOSES, THE APPEALS OF ALL THE ASSESSEE ARE TREATED AS ALLOWED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER ANNOUNCE ON 21/10/2021 AS PER RULE 34(5) OF INCOME TAX (APPELLATE TRIBUNAL) RULES1963. SD/- SD/- PAWAN SINGH ARJUN LAL SAINI (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) / SURAT, DATED : 21/10/2021 RAJESH KUMAR, SR.PS COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER // TRUE COPY // / / TRUE COP// ASSISTANT REGISTRAR, SURAT