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Income Tax Appellate Tribunal, KOLKATA BENCH “D” KOLKATA
Before: Shri Aby.T Varkey & Shri Waseem Ahmed
आदेश /O R D E R PER Waseem Ahmed, Accountant Member:- This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-21, Kolkata dated 21.04.2016. Assessment was framed by ITO, TDS Hooghly u/s 221 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide his order dated 20.12.2012 for assessment year 2009-10. 2. At the time of hearing, we find that neither anybody appeared on behalf of assessee nor any application for adjournment was filed from assessee. However, we noticed that the ld. CIT(A) has passed the ex-parte order. Therefore, we decided to dispose of the appeal after considering the materials M/s Gour Construction Vs. ITO TDS Hgly Page 2 available on records and without the appearance of the assessee after hearing Ld. DR for the Revenue.
At the outset, it was observed from the order of Ld. CIT(A) that the case was fixed for hearing on various occasions but the assessee most of the time was absent. Therefore, the appeal was decided by Ld. CIT(A) as ex parte on 21.04.2016. Against the impugned ex parte order of Ld. CIT(A) assessee filed an appeal before us and submitted in grounds of appeal
that the impugned order has been passed without giving opportunity to the assessee.
4. On perusal of appellate order, we find that Ld. CIT(A) affirmed the action of Assessing Officer ex parte without mentioning any reason for confirming the same on merits. The provisions of Section 250(6) of the Act require the Commissioner (Appeal) to dispose of the appeal in writing with reasoning. Thus, in such circumstances 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