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Income Tax Appellate Tribunal, GAUHATI ‘E’COURT, AT KOLKATA
Before: SHRI A. T. VARKEY, JM &DR. A.L.SAINI, AM
आदेश / O R D E R Per Dr. A. L. Saini: The captioned appeal filed by the Assesseepertaining to assessment year 2011-12, is directed against the order passed by the Commissioner of Income Tax (Appeal) -Dibrugarh, in appeal No.CIT(A), Dibrugarh/10063/2018-19, dated 19.06.2019, which in turn arises out of an assessment order passed by the Assessing Officer u/s 144 of the Income Tax Act, 1961 (in short ‘the Act’).
Grounds of appeal
raised by the Assesseeare as follows: “1. The appellant is presently residing at Delhi, he did not receive any notice u/s 148 of the IT Act, 1961.
2. No show cause- notice was received by the appellant in respect of the addition of Rs. 13,50,000/- u/s 69C. 3.Learned AO has not provided any opportunity of being heard before passing the assessment u/s 144.
4. The appellant craves to leave to add, amend, alter, vary and/or withdraw any or all the above grounds of appeal.”
Vishal Agarwalla Assessment Year:2011-12
At the outset itself, the learned counsel submitted that the assessee did not get the notice of hearing during the assessment stage as well as during the appellate proceedings also. However, during the appellate proceedings, the assessee sought adjournment on 13.03.2019 and thereafter the assessee was not aware about the fixation of hearing before the ld CIT(A), as the assessee did not receive notice of hearings. In this connection, the learned counsel took us through para No. 3 of the order of the Ld. CIT(A), which reads as follows: “The case was fixed for hearing on 28.02.2019. Fixation notice was sent by e-mail as well as to the PAN address of assessee. There was no response. It was fixed again for hearing on 13.03.2019. There was an adjournment application. Thereafter, the case was fixed for hearing on 21.05.2019 and 18.06.2019. No one attended. The appeal is therefore decided based on available facts.”
The ld Counsel therefore submits before the Bench that it is abundantly clear that assessee has participated in appellate proceedings and sought an adjournment. However, the assessee could not attend the hearings after 13.03.2019, as he did not receive notices of hearings therefore ld Counsel 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. The 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.The Ld. DR did not have any objection if the matter is remitted back to the file of the Ld. CIT(A).
We 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 the Hon’ble 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-à-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 Vishal Agarwalla Assessment Year:2011-12 rooted in all legal systems and are not any new theology. They are manifested in the twin principles of nemo judex in partesua (no person shall be a judge in his own case) and audi alterem partem (the right to be heard). It has been pointed out that the aim of natural justice is to secure justice.
Considering the above facts, we note that assessee has not given sufficient opportunity of being heard and could not plead his case successfully before the ld. CIT(A), 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, in the interest of justice, 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 appeal of the assessee is treated as allowed.
7.In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the Court on 17.07.2020