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Income Tax Appellate Tribunal, KOLKATA BENCH “D” KOLKATA
Before: Shri N.V.Vasudevan & Shri Waseem Ahmed
O R D E R
PER Waseem Ahmed, Accountant Member:
- This appeal filed by assessee pertaining to assessment year 2009-10 ex parte order passed by Ld. Commissioner of Income Tax (Appeals)-2, Kolkata dated 28.11.2016. Shri A.K. Tibrewal, Ld. Authorized Representative appeared on behalf of assessee and Shri Arindam Bhattcherya, Ld. Departmental Representative appeared on behalf of Revenue.
At the outset, it was observed from the order of Ld. CIT(A) that the last date of hearing of the appeal was fixed on 22.11.2016 but none-appeared on behalf of assessee. Therefore, the Ld. CIT(A) passed ex parte order due to non appearance of the assessee. Against the impugned ex parte order of Ld. CIT(A) A.Y. 2009-10 Sattva Developers Pvt. Ltd. Vs. DCIT, Cir-5(1),Kol. Page 2 assessee filed an appeal before us and pleaded in the grounds of appeal that the impugned order has been passed without giving opportunity to the assessee.
On perusal of appellate order, we find that Ld. CIT(A) affirmed the action of Assessing Officer without deciding the issue raised before him on merits. The provisions of Section 250(6) of the Act require the Commissioner (Appeal) to dispose of the appeal in writing with reasoning. But we find from the impugned order of Ld. CIT(A) who confirmed the order of AO without deciding the same on merit. We 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 in 1978 SCR (2) 621, wherein Hon'ble Supreme Court has laid down that rule of fair hearing is necessary before passing any 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. Therefore, we are of the view that the assessee must be given one more opportunity of hearing and 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. CIT (A) for reconsideration of 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 A.Y. 2009
10. Sattva Developers Pvt. Ltd. Vs. DCIT, Cir-5(1),Kol. Page 3 evidences on which he wants to rely upon. Hence, this ground of assessee’s appeal stands allowed for statistical purpose.