Shri Nailesh Kantilal Chapadia, Surat V. The Income Tax Officer, Ward-2(4), Surat

MA 168/AHD/2017

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5616 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 6 month(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: 05-06-2017
• 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. NAILESH KANTILAL CHAPADIA VS. ITO, WARD-2(4), SURAT/MA.NO.168/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.168/AHD/2017 ARISING OUT OF I.T.A NO.147/AHD/2014 [ [ / ASSESSMENT YEAR: 2009-10 NAILESH KANTILAL CHAPADIA, 2/445-B, SHIVDAS ZAVERI STREET, SAGRAMPURA, SURAT 395002. [PAN: AGJPC 3959 P] V S . THE INCOME TAX OFFICER, WARD-2(4), SURAT. / APPELLANT /RESPONDENT [ /ASSESSEE BY SHRI RAJESH UPADHYAH A.R. AND MRUNAL B.JINWALA 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 05.01.2017. 2. AT THE OUTSET, THE LD.AUTHORISED REPRESENTATIVE(AR) OF THE ASSESSEE SUBMITTED THAT THE HON'BLE ITAT AHMEDABAD SMC BENCH DISMISSED THE ASSESSEES APPEAL BY HOLDING THAT NON-ONE HAS COME APPEARED ON BEHALF OF THE ASSESSEE NOR ANY PAPER-BOOK HAS BEEN FILED. AND FURTHER HELD THAT THE ASSESSEE DID NOT APPEAR BEFORE THE LD.CIT(A) ALSO. MISC. APPLN. NAILESH KANTILAL CHAPADIA VS. ITO, WARD-2(4), SURAT/MA.NO.168/AHD/2017 FOR A.Y. 2009-10 PAGE 2 OF 4 CONSIDERING CONDUCT OF THE ASSESSEE, THIS APPEAL IS DISMISSED FOR WANT OF PROSECUTION. 3. THE LD.AUTHORISED REPRESENTATIVE(AR) FOR THE ASSESSEE SUBMITTED THAT THERE WAS NO MALAFIDE INTENTION WHATSOEVER FOR NOT REMAINING PRESENT BEFORE THE HON'BLE BENCH, AS THE APPELLANT WAS TOTALLY UNAWARE OF THE FACT THAT THE HEARING OF HIS APPEAL WAS FIXED ON 05.01.2017 IN ABSENCE OF WRITTEN NOTICE. HE FURTHER PRAYED THAT THE APPEAL MAY KINDLY BE RECALLED FOR HEARING IN THE INTEREST OF EQUITY AND JUSTICE. 4. ON THE OTHER HAND, THE LD.DEPARTMENTAL REPRESENTATIVE(DR) OBJECTED THE CONTENTS OF APPLICATION FILED BY THE ASSESSEE AND SUBMITTED THAT IN COMPLIANCE AND REQUESTS MADE BY THE ASSESSEE TWO OPPORTUNITIES I.E. 02.11.2016 AND 05.01.2017 HAS BEEN PROVIDED TO THE ASSESSEE BUT THE OR AR NEITHER APPEARED IN PERSON NOR SOUGHT ADJOURNMENT. THEREFORE, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE NEEDS TO BE REJECTED. 5. 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 DISMISSED FOR WANT OF PROSECUTION 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. THE MISC. APPLN. NAILESH KANTILAL CHAPADIA VS. ITO, WARD-2(4), SURAT/MA.NO.168/AHD/2017 FOR A.Y. 2009-10 PAGE 3 OF 4 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. 6. WE FIND THAT ASSESSEE COULD NOT APPEAR AND BE THAT AS IT MAY, WE FIND THAT APPEAL IN THIS CASE WAS DISMISSED FOR WANT OF PROSECUTION 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. 7. 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 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- MISC. APPLN. NAILESH KANTILAL CHAPADIA VS. ITO, WARD-2(4), SURAT/MA.NO.168/AHD/2017 FOR A.Y. 2009-10 PAGE 4 OF 4 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. 8. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 9. 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