Shri Dhiren Vanubhai Mehta, Mumbai V. The Income tax Officer, Ward-6(1), Surat

MA 101/AHD/2017

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5615 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 8 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 29-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Audi alteram partem
• Section: 13

Judgement Text

MISC. APPLN. DHIREN VANUBHAI MEHTA VS. ITO, WARD-6(1), SURAT/MA.NO.101/AHD/2017 FOR A.Y. 2009-10 PAGE 1 OF 4 , , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . ./ M.A NO.101/AHD/2017 ARISING OUT OF I.T.A NO.1128/AHD/2013 [ [ / ASSESSMENT YEAR: 2009-10 DHIREN VANUBHAI MEHTA, 404-B, MONARCH GARDENS, AMAR WIRE MILL COMPOUND, 6, SEWREE CROSS ROAD, SEWREE W, MUMBAI 400 015. [PAN: ABJPM 9269 R] V S . THE INCOME TAX OFFICER, WARD-6(1), SURAT. / APPELLANT /RESPONDENT [ /ASSESSEE BY SHRI UMESHDALAL A.R. /REVENUE BY SMT. ANUPAM SINGLA SR.DR / DATE OF HEARING: 06.12.2019 /PRONOUNCEMENT ON: 13.12.2019 /O R D E R PER SANDEEP GOSAIN, JM: 1. BY WAY OF THIS MISCELLANEOUS APPLICATION THE ASSESSEE IS REQUESTING THE TRIBUNAL TO RECALL THE ORDER PASSED BY THE TRIBUNAL ON 16.11.2015. 2. AT THE OUTSET, THE LD.AUTHORISED REPRESENTATIVE(AR) OF THE ASSESSEE SUBMITTED THAT MAIN APPEAL WAS DECIDED IN THE ABSENCE OF ASSESSEE AND IN THIS REGARD THE ASSESSEE HAS DRAWN OUR ATTENTION TO THE CONTENTS OF THE APPLICATION, WHEREIN HE HAS MENTIONED THAT THE NOTICE OF HEARING WAS RECEIVED BY THE ASSESSEE AND CONSEQUENTLY THE SAME WAS FORWARDED MISC. APPLN. DHIREN VANUBHAI MEHTA VS. ITO, WARD-6(1), SURAT/MA.NO.101/AHD/2017 FOR A.Y. 2009-10 PAGE 2 OF 4 TO ASSESSEES AR ON 16.11.2015. THE LD.AR SHRI MEHUL K. PATEL, ADVOCATE WAS DULY PRESENT BEFORE THE HON'BLE ITAT. BUT, UNFORTUNATELY, WHEN THIS APPEAL WAS FIXED FOR HEARING, THE SAID ADVOCATE WAS BUSY IN ANOTHER APPEAL BEFORE THE HON'BLE B BENCH IN THE CASE OF SUTEX CO- OPERATIVE BANK BEARING ITA.NO.2102/AHD/2011 AND THUS, COULD NOT PRESENT HIMSELF BEFORE THE HON'BLE BENCH IN THE PRESENT APPEAL. THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT IN SUPPORT OF MISCELLANEOUS APPLICATIONS. 3. ON THE OTHER HAND, THE LD.DEPARTMENTAL REPRESENTATIVE(DR) DENIED THE CONTENTS OF APPLICATION FILED BY THE ASSESSEE AND SUBMITTED THAT THE ORDER PASSED BY THE HON'BLE BENCH WAS PASSED AFTER PROVIDING DUE OPPORTUNITY TO THE ASSESSEE, THUS, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE NEEDS TO BE REJECTED AND REQUESTED FOR THE DISMISSAL THE OF THE PRESENT MISCELLANEOUS APPLICATION OF THIS APPEAL. 4. WE HAVE HEARD THE COUNSELS OF BOTH THE PARTIES AND WE ALSO PERUSED THE MATERIAL PLACED ON RECORD AND ORDERS PASSED BY THE BENCH. FROM THE APPLICATION AS WELL AS AFFIDAVIT AND THE RECORDS OF THE CASE FILED, WE FIND THAT THE PRESENT APPEAL WAS DECIDED BY THE HON'BLE ITAT BENCH EX-PARTE IN THE ABSENCE OF THE ASSESSEE/AR AND NOW THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS APPLICATION ON THE CONTENTS AS NARRATED ABOVE WHICH IS SUPPORTED BY THE AFFIDAVIT. IT IS TRUE THAT IT IS THE OBLIGATION OF THE ASSESSEE OR HIS AR TO APPEAR BEFORE THE BENCH AS AND MISC. APPLN. DHIREN VANUBHAI MEHTA VS. ITO, WARD-6(1), SURAT/MA.NO.101/AHD/2017 FOR A.Y. 2009-10 PAGE 3 OF 4 WHEN THE APPEAL IS CALLED OUT FOR HEARING. NEVERTHELESS, WE ARE ALSO OF THE VIEW THAT THE PRINCIPLES AUDI ALTERAM PARTEM IS THE BASIC CONCEPT OF THE NATURAL JUSTICE. THE EXPRESSION AUDI ALTERAM PARTEM IMPLIES THAT A PERSON MUST BE GIVEN AN OPPORTUNITY TO DEFEND HIMSELF WHICH IS SIN QUA NON OF EVERY CIVILIZED SOCIETY THE RIGHT TO NOTICE, THE RIGHT TO PRESENT CASE AND EVIDENCE, RIGHT TO REFER ADVERT EVIDENCE, RIGHT TO EXAMINE, RIGHT TO LEGAL REPRESENTATION, DISCLOSURE OF EVIDENCE TO PARTY, REPORT OF ENQUIRY BE SHOWN TO THE OTHER PARTY AND REASONED DECISION OR SPEAKING ORDER IS MUST. 5. WE FIND THAT ASSESSEE COULD NOT APPEAR AND BE THAT AS IT MAY, WE FIND THAT APPEAL IN THIS CASE WAS DECIDED EX-PARTE IN THE ABSENCE OF THE ASSESSEE AND NOW THE ASSESSEE HAS APPEARED AND HAS SHOWN SUFFICIENT CAUSE FOR HIS NON-APPEARANCE EARLIER. THEREFORE, CONSIDERING THE INTEREST OF JUSTICE, WE ARE OF THE VIEW THAT ASSESSEE MUST BE GIVEN ONE MORE OPPORTUNITY OF BEING HEARD AND TO REPRESENT HIS CASE, THEREFORE WE ALLOW THIS PRESENT APPLICATION. 6. WE ARE OF THE VIEW THAT THE ASSESSEE MUST BE GIVEN ONE MORE OPPORTUNITY OF BEING HEARD AND TO REPRESENT HIS CASE. THEREFORE, IN EXERCISE OF THE POWERS CONFERRED UNDER RULE 28 OF TRIBUNAL RULES, WE RESTORE BACK TO THE FILE OF THE LEARNED CIT(A) TO PROVIDE ONE MORE OPPORTUNITY AND ALSO THEREBY TO CONSIDER ALL THE POINTS SO RAISED BY THE ASSESSEE. NEVERTHELESS TO MENTION, THAT ASSESSEE WILL CO-OPERATE IN THE MISC. APPLN. DHIREN VANUBHAI MEHTA VS. ITO, WARD-6(1), SURAT/MA.NO.101/AHD/2017 FOR A.Y. 2009-10 PAGE 4 OF 4 APPEAL PROCEEDINGS AND APPEAR BEFORE THE LEARNED CIT(A) AS AND WHEN THE HEARINGS FIXED BY THE LEARNED CIT(A). WE MAKE IT CLEAR THAT NON- ATTENDANCE WILL OF THE ASSESSEE BEFORE CIT (A) WILL ENTAIL CONFIRMATION OF THE IMPUGNED ADDITION MADE BY THE AO. THE ASSESSEE WILL FILE NECESSARY EVIDENCES ON WHICH HE WANTS TO RELY UPON. 7. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 8. ORDER PRONOUNCED IN THE OPEN COURT ON 13-12-2019. SD/- SD/- (O.P.MEENA) (SANDEEP GOSAIN) ( /ACCOUNTANT MEMBER) ( /JUDICIAL MEMBER) / SURAT, DATED : 13 TH DECEMBER , 2019/ S.GANGADHARA RAO, SR.PS COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT