M/S SHIV PARIWAR COMMODITIES (P) LTD.,KOLKATA vs. ITO, WARD-15(2), KOL., KOLKATA

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ITA 287/KOL/2017Status: DisposedITAT Kolkata06 April 2018AY 2012-133 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that the CIT(A) failed to provide a proper opportunity of being heard to the assessee, violating the principles of natural justice. The appeal was restored to the CIT(A) for reconsideration after allowing a proper opportunity of hearing.

What were the facts?

The assessee's appeal before the CIT(A) was decided ex parte due to the assessee's non-appearance. The CIT(A) affirmed the Assessing Officer's order without deciding the issues on merits. The assessee appealed to the ITAT, arguing they were not given an opportunity to be heard.

What were the issues?

Whether the CIT(A) erred by passing an ex parte order without providing a proper opportunity of hearing to the assessee, violating principles of natural justice.

Which sections of the Income-tax Act were involved?

Section 250(6)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, KOLKATA BENCH “D” KOLKATA

Before: Shri Waseem Ahmed & Shri S.S.Viswanethra Ravi

आदेश /O R D E R PER Waseem Ahmed, Accountant Member:- This appeal by the assessee for assessment year 2012-13 is directed against the order of Commissioner of Income Tax (Appeals)-5, Kolkata dated 27.04.2015. Shri Rajeeva Kumar, Ld. Advocate appeared on behalf of assessee and Shri A. K.Tiwari, Ld. Departmental Representative appeared on behalf of Revenue.

2.

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 27.04.2015 but none-appeared on M/s Shiv Pariwr Commodities Pvt Ltd. vs. ITO Wd-15(2) Kol. Page 2 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) 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.

3.

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 to represent its 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 all grounds of appeal after allowing proper opportunity of being heard in accordance with law. Nevertheless, it is necessary to mention that the assessee M/s Shiv Pariwr Commodities Pvt Ltd. vs. ITO Wd-15(2) Kol. Page 3 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. Hence, this ground of assessee’s appeal stands allowed for statistical purpose.

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