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Income Tax Appellate Tribunal, “A”, BENCH KOLKATA
Before: SHRI S.S.GODARA, JM &DR. A.L.SAINI, AM
आदेश / O R D E R Dr. A.L. Saini, AM:
The captioned appeal filed by the assessee, pertaining to assessment year 2010-11, is directed against the order passed by the ld. Principal Commissioner of Income Tax(PCIT), Kolkata u/s 263 of the Income Tax Act, 1961 (in short the “Act”) dated 13/03/2019.
In this appeal, the assessee has challenged the correctness of the order passed by the ld. PCIT u/s 263 of the Act. At the outset itself, the ld. Counsel for the assessee submitted that during the proceedings u/s 263 of the Act, the notice of hearing issued by the ld PCIT has not been served on the assessee. The ld PCIT issued notice to the assessee on 19.02.2018 and 01.03.2018, both these notices were not M/s Bhuvneshewari Vyapaar Pvt. Ltd. Assessment Year:2010-11 served on the assessee. The ld Counsel further submitted that assessee`s old address and new address were same but in spite of this due to postal anomalies these notices were not served on the assessee therefore assessee could not reply these notices, hence an another opportunity should be given to the assessee to present his case before ld PCIT.
On the other hand, the ld. D.R. for the Revenue fairly agreed that the submissions of the ld. Counsel for the assessee and stated before the Bench that there is no requirement to give the notice u/s 263 of the Act but an opportunity of being heard should be given to the assessee, which is absent in the assessee`s case. The ld DR did not object if the issue is remitted back to the file of the ld PCIT.
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 available on record. We note that sub-section (1) of section 263 of the Act states that an opportunity of being heard should be given to the assessee and it is not mandatory for the ld. PCIT to issue the notice to the assessee, what is required is that an opportunity of being heard should be given to the assessee. At this juncture, it is appropriate to refer the provision of sub-section (1) of section 263 of the Act which reads as follows:
“The Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he, may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment.
Therefore, it is evidently clear that as per the provision of sub-section (1) of section 263, an opportunity of being heard should be given to the assessee which in the assessee’s case is absent.
M/s Bhuvneshewari Vyapaar Pvt. Ltd. Assessment Year:2010-11 4. We note that legal maxims, “Audi alteram partem” literally means “hear the other party”. This maxim is based on the principle of natural justice. It means that a person deciding on issue should hear both sides and give each an opportunity of hearing what is being alleged against him. It has long been an accepted rule that no one is to be condemned, punished or deprived of property in any judicial or quasi-judicial proceeding unless he has had an opportunity of being heard.Any person against whom an action is proposed to be taken or whose right or interest is being affected, should be given a reasonable opportunity to defend himself. A decision taken without affording both the parties an opportunity to be heard violates the principles of natural justice. An award made in violation of the above said rule may be set aside. On laying of charges, an opportunity to answer it must be given to an individual alleged to have committed an offence. Sufficient notice also should be given to the person against whom the charge is laid. This rule has a universal acceptance and is founded upon the plainest principles of justice.
Therefore keeping in mind the principle of natural justice, we are of the view that one more opportunity should be given to the assessee to plead his case before the ld PCIT. Hence, we think it fit and appropriate to remit this issue back to the file of ld. PCIT for de novo adjudication after giving sufficient opportunity of being heard to the assessee. We made it clear that we have not expressed our opinion on any of the issue raised herein on merits. The assessee is also directed to submit the required documents and evidences as called for by the ld. PCIT during the proceedings u/s 263 of the Act. For Statistical purposes, the appeal of the assessee is allowed.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the Court on 24.12.2019