LABHUBHAI DE vs. HIBHAI ZALAVADIA,SURATVS.INCOME TAX OFFICER, WARD-3(3)(5), SURAT

Shri Labhubhai Devshibhai Zalavadia Vs. ITO, Ward-3(3)(5), Surat /ITA No.671/SRT/2018/A.Y. 2012-13 Page 1 of 3

आयकर अपीलीय अिधकरण,सुरत �यायपीठ, सुरत IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER आ.अ.सं./I.T.A. No.671/SRT/2018 िनधा�रण वष�/Assessment Year : 2012-13 Shri Labhubhai Devshibhai Vs. The Income Tax Officer, Zalavadia, Ward-3(3)(5), Surat. 37, Ranchhodnagar, Aakar Club, BRTS Simada, Sarthana Jakatnaka, Surat. [PAN: AADPZ 7652 G] अपीलाथ� Appellant ��यथ�/Respondent Shri Mehul R.Shah – CA िनधा�रती क� ओर से /Assessee by Shri Prasoon Kabra – Sr.DR राज�व क� ओर से /Revenue by 26.02.2019 सुनवाई की तारीख/ Date of hearing: 27.02.2019 उ�ोषणा क� तारीख/Pronouncement on: आदेश /O R D E R PER O.P.MEENA, AM: This appeal filed by the Assessee are directed against the 1. order of learned Commissioner of Income Tax (Appeals)-3, Surat(in short “the CIT (A)”) dated 23.07.2018 pertaining to Assessment Year 2012-13.

The grounds raised by the assessee read as under : 2. “1. The C.I.T.(Appeals) erred in law and on facts in dismissing the appeal of the appellant thereby confirming addition of Rs.98,65,306/- made by the Assessing Officer. 2. The C.I.T.(Appeals) erred in law and on facts in passing an ex parte appellate order on 23.07.2018 without considering the adjournment application filed by the appellant on 17.07.2018 asking time of 15 days.”

Shri Labhubhai Devshibhai Zalavadia Vs. ITO, Ward-3(3)(5), Surat /ITA No.671/SRT/2018/A.Y. 2012-13 Page 2 of 3

At the outset, the Ld. Counsel for the assessee contended 3. that no proper opportunity of hearing was afforded to the assessee. The ld. CIT (A) was not justified in rejecting the appeal of the assessee ex-parte. The documents relied by the AO were not made available to assessee. The Ld. Counsel prayed that the appeal be restored to the file of ld. CIT (A) with a direction that proper opportunity of being heard may be allowed to the assessee.

The Ld. Senior D.R. relied on the orders of the authorities 4. below, however, has no objection if the entire issue is set-aside to ld.Assessing Officer.

We have heard the rival contentions of both the parties. We 5. find that the ld. CIT (A) has not allowed proper opportunity of being heard. The principle of audi alteram partem is the basic concept of natural justice. The expression “audi alteram partem” implies that a person must be given an opportunity to defend himself. This principle is sine qua non of every civilized society. The right to notice, right to present case and evidence, right to rebut adverse evidence, right to cross examination, right to legal representation, disclosure of evidence to party, report of enquiry to be shown to the other party and reasoned decisions or speaking orders. We took this guidance for right of hearing, from the ratio as is laid down by the Hon'ble Supreme Court in the case of Maneka Gandhi v. Union of India, wherein Hon'ble Supreme Court has laid down that rule of fair hearing is necessary before passing any

Shri Labhubhai Devshibhai Zalavadia Vs. ITO, Ward-3(3)(5), Surat /ITA No.671/SRT/2018/A.Y. 2012-13 Page 3 of 3

order. We find that it is pre-decision hearing standard of norm of rule of audi alteram partem. We find that in this instant case, the assessee was not given proper hearing and simply dismissed appeal by relying on the decision in the case of B. N. Bhattacharjee 118 ITR 461 (SC). Therefore, we are of the view that the assessee must be given one more opportunity of hearing to represent his case. Therefore, in exercise of power conferred under Rule 28 of Tribunal Rules, we restore this appeal to the file of ld.Assessing Officer for reconsideration all grounds of appeal after allowing proper opportunity of being heard in accordance with law. Nevertheless, to mention that the assessee will cooperate in the appeal proceedings and his failure will entail confirmation of the impugned addition made by the AO. The assessee will file necessary evidences on which he wants to rely upon.

In the result, the appeal of the assessee is allowed for 6. statistical purposes.

The order pronounced in the open court on 27.02.2019. 7. Sd/- Sd/- (KUL BHARAT) (O.P.MEENA) (�याियकसद�यतथा/JUDICIAL MEMBER) (लेखासद�यकेसम� /ACCOUNTANT MEMBER) सुरत/ Surat, �दनांक Dated: 27th February, 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