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Income Tax Appellate Tribunal, DIVISION BENCH, AMRITSAR
Before: SHRI. N.K. SAINI & SHRI N.K. CHOUDHRY
Sh. Abdul Hamid Sofi, Vs. Income Tax Officer, S/o Sh. Ghulam Rasool Sofi, Ward 3(1), Srinagar Amar Singh college Lane, Gogji Bagh, Srinagar [PAN No: ACDPS 4128A] (Appellant) (Respondent) Appellant by : Sh. Upender Bhatt (Ld. C.A.) Respondent by: Sh. Charan Dass (Ld. D.R.) Date of hearing: 22.09.2020 Date of pronouncement: 22.09.2020 ORDER
PER N.K. CHOUDHRY, JM:
This appeal has been preferred by the Assessee against the order dated 25-10-2018 impugned herein, passed by the Ld. CIT(A)-2, Jalandhar (Camp Office at Srinagar) u/s. 250(6) of the Income Tax Act, 1961 (hereinafter called as the ‘Act’), whereby the Ld. CIT(A) dismissed the appeal of the Assessee.
At the outset, during the course of hearing of this appeal, it was observed by the bench that there is delay of 7 days in filling of the instant appeal, which has been explained by the assessee by submitting that the appeal was dispatched by Speed Post on dated 07-01-2019 with the assumption that the same would be delivered by 09-01-2019 i.e. within due date , however due to disturbed weather conditions in Kashmir, resulted delay in receipt of Appeal by ITAT, Amritsar by 7 days. Ld. DR refuted the claim of the assessee. In our considered view the delay as explained by the assessee seems to be bonafide and unintentional, hence we are inclined to condone the same, consequently delay of 7 days in filling of the instant appeal stands condoned.
Coming to the merits of the case, from the impugned order it reflects that though the Ld. CIT(A) fixed the case for hearing on various dates, however on all dates, none appeared on behalf of the Assessee and therefore the Ld. CIT(A) while observing that the appellant/assessee is not interested in pursuing its appeal, dismissed the same.
During the course of argument it was submitted by the assessee that the assessee is a psychiatric patient and under deep depression for over the last 10 years and still under treatment of the said disease. The assesses before us also filed copies of medical prescriptions of the said treatment and further submitted that due to the devastating floods in the year 2014, assessee’s various documents including pertaining to the income tax destroyed, which were being reconstructed . The assessee further submitted that during the year 2016 Kashmir Valley remained closed after killing of Burhan Wani and thereafter during 2016-2018 there was totally unrest in Kashmir region and curfew was imposed in all 10 districts and as the assessee address was at Goggi Bagh, which was one of the most affected area during the said period and therefore no notices from the office of Ld. CIT(A) were received as alleged in the impugned order .
As per claim of the Assessee, we have to consider as to whether the principles of natural justice have been complied with in the instant case by giving proper and reasonable opportunity of being heard to the Assessee/Appellant.
It is trite to say that every person has the right to speak and be heard when allegations are being put towards him or her. If no opportunity has been given to the party effected, then it shall amount to violations of the principles of natural justice, which embedded in latin words “Audi Alteram Partem” which means ‘hear the other side’, or ‘no man should be condemned un-heard’ or ‘both the sides must be heard before passing any order’. The principle of Audi Alteram Partem is the basic concept of the principles of natural justice and has not evolved from the constitution but evolved through civilization and mankind and is the concept of common law, which implies fairness, reasonableness, equality and equity. In India, the principles of natural justice are the grounds of Article 14 and 21 of the Constitution. Article 14 enshrines that every person should be treated equally. In the landmark case of ‘Maneka Gandhi vs. The Union of India’ (1978 AIR 597), it has been held by Constitution Bench of the Apex Court that the law and procedure must be of a fair, just and reasonable kind. The doctrine ensures a fair hearing and fair justice to both the parties. Under this doctrine, both the parties have the right to speak. The aim of this principle is to give an opportunity to the parties to defend themselves. Before the court, both the parties are equal and are entitlement of equal opportunity to represent them. If the order is passed by the authority without providing the reasonable opportunity of being heard to the person affected by it adversely will be invalid and shall be liable to be set aside.
Coming to the instant case, though in the impugned order 7. the Ld. CIT(A) mentioned that 10 times notices have been issued to the assessee but none appeared, however it is a fact that from the order it nowhere reflects that as to whether the notices sent ‘actually served’ upon the Assessee or ‘returned unnerved’ and therefore it cannot be presumed that proper notices have ever been served upon the assessee and in spite of receiving notices the assessee deliberately neither attended the proceedings nor filed any written submissions. On the aforesaid peculiar circumstances, the contention raised by the assessee qua non-serving of the notices due to turmoil and curfew in Kashmir region, seems to be bonafide and genuine and therefore clearly reflects that the Assessee did not get reasonable opportunity of being heard. It is a settled principle that the effort of the court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, but to see whether it is possible to entertain his grievance if it is genuine, therefore in our considered view, considering the peculiar facts and circumstances of the case, it would be appropriate to set aside the impugned order and to remand back the instant case to the file of the Ld. CIT(A) for decision afresh on merits, while affording proper and reasonable opportunity of being heard to the assessee/appellant, in order to follow the principle of natural justice.
We also feel it appropriate to direct the Assessee/Appellant to extend its full co-operation and participation in the appellate proceedings before the Ld. CIT(A) as and when would be required and in case of default, the assessee shall not be subjected to any leniency.
In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open Court on 22.09.2020.