THE TINPLATE COMPANY OF INDIA LTD.,KOLKATA vs. DCIT, CIRCLE-3(1), KOLKATA, KOLKATA

- These two appeals by the assessee are directed against the different orders of Commissioner of Income Tax (Appeals)-1, Kolkata of even date i.e. dated 11.05.2016. Assessments were framed by ACIT,Circle-3, Kolkata u/s 143(3)/147 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide their order dated 18.12.2006 & 13.12.2007 for assessment years 2002-03 & 2005-06 respectively. Both appeals are heard together and are being dispose off by way of consolidate for the sake of convenience and brevity. Shri Kapil Basu & Shri Aamit Kumar Lal, Ld. Authorized Representative appeared on behalf of assessee and Shri A.K. Tiwari, Ld. Departmental Representative appeared on behalf of Revenue.

First we take up for A.Y.2002-03. -35/Kol/2016 A.Ys. 02-03 & 05-06 The Tinplate Co. of India Ltd. Vs. DCIT, Cir-3(1), Kol. Page 2 3. At the outset, it was observed that the Ld. CIT(A) decided the appeal ex parte vide order dated 11.05.2016 due to non-appearance of the assessee or its authorized representative. Against the impugned ex parte order of Ld. CIT(A) now assessee filed an appeal before us and pleaded that the impugned order by the ld. CIT(A) has been passed without giving opportunity of being heard to assessee as well as without considering the written submission filed by the assessee before Ld. CIT(A). The ld. AR also submitted that adjournment petition was also filed vide letter dated 10-5-2016 which was duly acknowledged by the office of the ld. CIT(A). But the same was not considered. Accordingly the ld. AR before us prayed to restore the matter to the file of ld. CIT(A) for fresh adjudication in accordance with the law.

Heard both the parties and perused the materials available on record. It was observed that the assessee has filed written submission before the ld. CIT-A as evident from the paper book filed before us. Similarly the adjournment petition seeking time for couple of days 10 days was also filed vide letter dated 10.5.2016 but the ld. CIT(A) without considering the same dismissed the appeal. The copy of the adjournment petition is enclosed on page 1 of the paper book which reads as under:- “PWC 10th May, 2016 The Commissioner of Income Tax (Appeals)-1 7th Floor, Aayakar Bhawan, P-7, Chowringhee Square Kolkata-700 069 Dear Sir, The Tinplate Company of India Limited PAN:AABCT0129P Appeal No.194/CIT(A)-1/C-3/2007-08 Income Tax Assessment Year 2002-03 We write with reference to the captioned appeal hearing fixed before your kindself today. -35/Kol/2016 A.Ys. 02-03 & 05-06 The Tinplate Co. of India Ltd. Vs. DCIT, Cir-3(1), Kol. Page 3 In this connection, it is humbly submitted that the Authorized Representative who is conversant and dealing with the matter and who is to represent the case before your kindself is not attending office due to some exigencies. Under the compelling circumstances, it is most humbly request that the hearing fixed today may kindly be adjourned and re-fixed after a couple of days on a later date convenient to learned CIT (Appeals). Meanwhile, we enclose herewith our submissions along with annexure, which may kindly be read in conjunction with Statement of Facts filed along with Memorandum of Appeal and is requested to be referred in the subject appeal matter. Trust your kindself will accede to the aforesaid request. Yours faithfully, Sd/ Saurabh Pandey Saurabh Pandey (Authorised Representative)” In view above we note that the appeal has been by the ld. CIT(A) without considering the request made by the assessee vide letter dated 10.5.2016. 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, 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 all grounds of appeal after allowing proper opportunity of being heard in accordance with law. Nevertheless, to