Smt. Hansaben H. Patel, Ankleshwar V. The Income Tax Officer, Ward-4, Bharuch

MA 210/AHD/2017

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5617 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 4 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 12-07-2017
• 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. HANSABEN H.PATEL VS. ITO, WARD-4, BHARUCH /MA.NO.210/AHD/2017 FOR A.Y. 2007-08 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.210/AHD/2017 ARISING OUT OF I.T.A NO.2240/AHD/2014 [ [ / ASSESSMENT YEAR: 2007-08 HANSABEN H. PATEL, 01, RAVIDARSHAN SOCIETY, GIDC, ANKLESHWAR 393 002. [PAN: ADZPP 8635 L] V S . THE INCOME TAX OFFICER, WARD-4, BHARUCH. / APPELLANT /RESPONDENT [ /ASSESSEE BY SHRI K.P.SHAH 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 19.05.2017. 2. THE LD.AUTHORISED REPRESENTATIVE(AR) OF THE ASSESSEE SUBMITTED THAT THERE IS AN ERROR APPARENT FROM THE ORDER PASSED BY HON'BLE ITAT ON 19.05.017. IN THIS RESPECT, THE LD.AR DRAWN OUR ATTENTION TO THE APPLICATION FILED BY THE ASSESSEE IN WHICH IT HAS CATEGORICALLY BEEN STATED BY THE AR THAT THE MAIN APPEAL WAS FIXED ON 28.04.2017, BUT ON ACCOUNT MEDICAL GROUNDS IT WAS NOT POSSIBLE FOR SHRI J.P.SHAH, CA TO AR TO MISC. APPLN. HANSABEN H.PATEL VS. ITO, WARD-4, BHARUCH /MA.NO.210/AHD/2017 FOR A.Y. 2007-08 PAGE 2 OF 4 ATTEND THE HON'BLE BENCH ON 28.04.2017. THEREFORE, SHRI J.P.SHAH, CA WAS SEND BY SHRI K.P.SHAH-CA TO APPEAR BEFORE THE HON'BLE BENCH AND FOR SEEKING ADJOURNMENT. IT WAS SUBMITTED THAT THE BENCH HAD NOT ACCEPTED THE ADJOURNMENT APPLICATION AND INVOKED SHRI J.P.SHAH-CA THAT IN VIEW OF THE DECISION HON'BLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD. VS. ITO, THE APPEAL BE SET-ASIDE TO THE LD.AO. IT WAS FURTHER SUBMITTED THAT SHRI J.P.SHAH-CA WAS NOT HAVING LETTER OF AUTHORITY, BUT HAD REMAINED PRESENT ONLY FOR SEEKING ADJOURNMENT. IT WAS ALSO SUBMITTED THAT WHEN THE ASSESSEE RECEIVED THE ORDER OF HON'BLE ITAT AND THEY NOTICED THAT IN PARA NO.8 OF THE SAID ORDER IT HAS BEEN MENTIONED THAT WE HAVE HEARD BOTH THE PARTIES. 3. THE LD.AR DRAWN OUR ATTENTION TO THE AFFIDAVIT FILED BY THE SHRI J.P.SHAH CA WHEREIN HE HAS CATEGORICALLY MENTIONED THAT THE MATTER WAS NOT HEARD ON 28.04.2017 AND HE HAS NOT EVEN ARGUED THE CASE BEFORE THE BENCH AND HAD ONLY SOUGHT ADJOURNMENT. THUS, THE NAME OF SHRI J.P.SHAH-CA HAS BEEN WRONGLY MENTIONED IN THE ORDER. THUS, IN THESE CIRCUMSTANCES, IT WAS REQUESTED BY LD.AR THAT ORDER DATED 19.05.2017 BE RECALLED AND APPEAL BE RE-FIXED FOR HEARING. 4. ON THE OTHER HAND, THE LD.DEPARTMENTAL REPRESENTATIVE(DR) CONTESTED THE SAID APPLICATION FILED BY THE AO. 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, MISC. APPLN. HANSABEN H.PATEL VS. ITO, WARD-4, BHARUCH /MA.NO.210/AHD/2017 FOR A.Y. 2007-08 PAGE 3 OF 4 WE NOTICED THAT SHRI J.P.SHAH-CA WAS NOT AN AUTHORISED REPRESENTATIVE TO ARGUE THE MAIN APPEAL BEFORE THE BENCH AND EVEN THERE IS NO AUTHORIZATION GIVEN BY THE ASSESSEE TO SAID SHRI J.P.SHAH-CA. APART FROM THE ABOVE SHRI J.P.SHAH IS PRESENT IN THE COURT AND HAS FILED AN AFFIDAVIT BY SUBMITTING THAT THE BENCH HAD FULLY INFORMED THAT THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD. VS. ITO WOULD BE ADOPTED AND THE MATTER WILL BE SET-ASIDE TO THE LD.AO AND THUS IN THIS WAY, NO HEARING TOOK PLACE, HE HAS NOT PARTICIPATED IN ANY HEARING. 6. ON THE OTHER HAND, THE REVENUE HAS NOT FILED ANY COUNTER AFFIDAVIT TO REBUT THE CONTENTS CONTAINED IN THE APPLICATION APPEAL. THE AFFIDAVIT SO FILED BY SHRI J.P.SHAH-CA WHO IS PRESENT IN THE COURT. 7. AFTER HAVING HEARD THE COUNSELS AT LENGTH AND AFTER PERUSAL OF THE RECORD, WE FIND THAT IT IS AN UNDISPUTED FACT THAT SHRI J.P.SHAH-CA WAS NEVER AUTHORISED BY THE ASSESSEE TO ARGUE THE CASE AND FURTHER HE HAS SUBMITTED BY VIRTUE OF AN AFFIDAVIT THAT HE HAS NEVER ARGUED THE MATTER ON 28.04.2017. THUS, AT THIS STAGE WE HAVE NO OTHER OPTION EXCEPT THE PLEA OF SHRI J.P.SHAH CA WHO WAS ONLY DEPUTED TO SEEK ADJOURNMENT ON BEHALF OF THE MAIN AUTHORISED REPRESENTATIVE. AND HAS ALSO FILED AN AFFIDAVIT WHILE MENTIONING THE ABOVE FACTS. EVEN OTHERWISE, IN CASE, THE ORDER PASSED BY THE BENCH IS RECALLED AND ASSESSEE IS PROVIDED TO BE HEARD, THEN I THAT EVENTUALITY NO PREJUDICE SHALL BE CAUSED TO THE REVENUE. WE ARE ALSO OF THE VIEW THAT THE PRINCIPLE AUDI ALTERAM PARTEM IS THE BASIC CONCEPT OF THE NATURAL JUSTICE. THE EXPRESSION AUDI ALTERAM MISC. APPLN. HANSABEN H.PATEL VS. ITO, WARD-4, BHARUCH /MA.NO.210/AHD/2017 FOR A.Y. 2007-08 PAGE 4 OF 4 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. 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-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