DHEERAJ GOYAL,KOTA vs. PRINCIPAL CIT, KOTA

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JhEkrh fnok Çlg] U;kf;d lnL; ,oa Jh Hkkxpan] ys[kk lnL; ds le{k BEFORE: SMT. DIVA SINGH, JM & SHRI BHAGCHAND, AM

vk;dj vihy la-@ITA No. 586/JP/2016 fu/kZkj.k o"kZ@Assessment Year : 2011-12 cuke Dheeraj Goyal, Principal Commissioner Vs. A-27, Maina Mansion, Vallabh of Income Tax, Nagar, Kota. Kota. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AGYPG 1854 C vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Saurabh Harsh (Adv) jktLo dh vksj ls@ Revenue by : Shri Varinder Mehra (CIT) lquokbZ dh rkjh[k@ Date of Hearing : 15/03/2017 mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 17/03/2017 vkns'k@ ORDER

PER: DIVA SINGH, J.M. The present appeal has been filed by the assessee assailing the correctness of the order dated 21/03/2016 of Pr.CIT, Kota pertaining to assessment year 2011-12 on various grounds. However, at the time of hearing, an adjournment application was moved on behalf of the assessee requesting for time on the grounds that the arguing counsel was out of station. Considering the prayer of the assessee in respect of ground No. 1.2, the request was rejected and the appeal was passed over giving time to the counsel present to apply his mind to the aforesaid ground raised by the assessee in the present proceedings. Accordingly in the second round, the

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parties were only heard in respect of grounds No. 1 to 1.3, which reads as under:- “1 That on the facts, in the circumstances of the case, the order of the ld. Principal Commissioner of Income Tax U/s 263 of the Act is against the law and facts of the case and deserves to be quashed. 1.1 That in view of the evidence already available on AO's own record, the order of the ld. Principal Commissioner of Income Tax U/s 263 of the Act deserves to be quashed. 1.2 That the ld. Principal Commissioner of Income Tax grossly erred in passing an ex-parte order. 1.3 That the ld. Principal Commissioner of Income Tax erred in passing an order U/s 263 of the I.T. Act, 1961 without there being any service of notice to the assessee.” 2.1 The ld AR in the second round inviting attention to ground No. 1.2 submitted that the order has been passed without hearing the assessee. Accordingly, it was his prayer that the appeal may be remanded in order to afford the assessee an opportunity of being heard. The ld. CIT DR relied upon the impugned order.

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hearing on 08/3/2016, however, how the notice was issued for the said date has not been addressed in the order. When considering the aforesaid facts and plea of non-receipt of notice addressed in ground No. 1.3 taken by the assessee, we deem it appropriate to set aside the impugned order as the right to be heard is an important right to which a party who is faced with an adverse view is entitled to. “Audi alteram partem” is one of the most famous and celebrated Rule of Natural Justice. The principles of natural justice are those which have been laid out by the Courts as being the minimum protection of the rights of an individual by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. The principle by its very nature implies the duty to act fairly i.e. fair play in action must be evident at every stage. Fair play demands that nobody shall be condemned unheard.

3.1 In the celebrated judgement of the Apex Court in the case of A.K.Kraipak –vs- Union of India (1969) 2 SCC 262, it is observed that the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. The said rules are means to an end and not an end in themselves and though it is not possible to make an exhaustive catalogue of such rules however it can be readily said that there are two basic maxims of natural justice namely “audi alteram partem” and “nemo judex in re sua”. In the present facts of the case we are concerned with the maxim “audi alterm partem” which again may have many facets two of them (a) notice of the case to be met; and (b) opportunity to explain. Their Lordships have cautioned that these rules cannot be sacrificed at the altar of the administrative convenience or celebrity.

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3.2 It would also not be out of place to set out that judicial precedent is well settled and it has been well elaborated that the right to be heard cannot be a mere ritual or empty formality. Thus a mere ritual cannot be said to be an opportunity contemplated by law, as then it would be a "pretence" or "make believe". This is not a case of a mere routine exercise or simple matter. Hon’ble justice Krishna Iyer J., as he then was, stated in A. Ibrahim Kunju's case, AIR 1970 Ker 65 at page 67: ". . . . opportunity should be real and not ritualistic, effective and not illusory and must be followed by a fair consideration of the explanation offered and the materials available, culminating in an order which discloses reasons for the decision sufficient to show that the mind of the authority has been applied relevantly and rationally and without reliance on facts not furnished to the affected party. Natural justice, I must warn, cannot be perverted into anything unnatural or unjust and cannot therefore be treated as a set of dogmatic prescriptions applicable without reference to the circumstances of the case. The question merely is, in all conscience have you been fair in dealing with that man ? If you have been arbitrary, absent-minded, unreasonable or unspeaking, you cannot deny that there has been no administrative fair play. " 3.3 The principles of natural justice having their roots in the innate sense of man for fair play and justice which is not the preserve of any particular race or country but is shared in common by all men. A corollary of the audi alteram partem rule, namely, "qui aliquid statuerit parte inaudita altera, aequam licet, dexerit, haud aequum facerit", that is, "he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right" or in other words, as it is now expressed, "justice should not only be done but should manifestly be seen to be done".

ITA 586/JP/2016_ 5 Dheeraj Goyal Vs Pr. CIT, Kota 3.4 Accordingly where on facts for no fault of the assessee, it remained unrepresented we deem it appropriate to set aside the impugned order back to the file of the ld. Pr. CIT, Kota. While so directing it is hoped that the opportunity so provided in good faith is utilized fairly and completely by the assessee. In the eventuality of abuse of the same, it is made clear that the ld. Pr.CIT, Kota would be at liberty to pass a speaking order on the basis of material available on record. Thus, the assessee in its own interests should ensure that it participates in the proceedings before the said authority, who shall then pass a speaking order in accordance with law after providing effective opportunity of being heard to the assessee.

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