M/s. P.M. Buildwell Pvt. Ltd., New Delhi v. ITO, New Delhi

ITA 4835/DEL/2015 | 2008-2009
Pronouncement Date: 28-09-2016 | Result: Allowed

Appeal Details

RSA Number 483520114 RSA 2015
Assessee PAN AAECP0672J
Bench Delhi
Appeal Number ITA 4835/DEL/2015
Duration Of Justice 1 year(s) 2 month(s) 4 day(s)
Appellant M/s. P.M. Buildwell Pvt. Ltd., New Delhi
Respondent ITO, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 28-09-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC 2
Tribunal Order Date 28-09-2016
Date Of Final Hearing 03-08-2016
Next Hearing Date 03-08-2016
Assessment Year 2008-2009
Appeal Filed On 24-07-2015
Judgment Text
PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-II NEW DELHI BEFORE SMT DIVA SINGH JUDICIAL MEMBER I.T.A .NO.-483 5/DEL/2015 (ASSESSMENT YEAR- 2008-09) P.M.BUILDWELL PVT.LTD. M-28 MARKET GREATER KAILASH-II NEW DELHI-110048. PAN-AAECP0672J (APPELLANT) VS ITO WARD-14(1) NEW DELHI (RESPONDENT) APPELLANT BY SH. GARJIT BATRA CA RESPONDENT BY MS. ANIMA BAR A NWAL SR.DR ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 19.05.2015 OF CIT(A)-7 DELHI PASSED U /S 154 OF THE INCOME TAX ACT 1961 PERTAINING TO 2008-09 ASSESSMENT YEAR ON THE FOLLOW ING GROUNDS:- 1) THAT THE HON'BLE COMMISSIONER OF INCOME T AX (APPEALS) HAS ERRED IN LAW AS MUCH AS ON THE FACTS OF THE CASE IN REJECTIN G THE APPLICATION FILED BY THE APPELLANT U/SEC. 154 OF THE INCOME TAX ACT 196 1 ARBITRARILY AND WITHOUT PROVIDING ANY OPPORTUNITY OF BEING HEARD U/SEC. 154 (3) OF THE ACT WITH SPECIAL REFERENCE TO THE FACT THAT SUCH REQUEST WAS SPECIFI CALLY MADE FOR SUCH OPPORTUNITY TO THE APPELLANT. 2) THAT THE HON'BLE COMMISSIONER OF INCOME TA X (APPEALS) HAS REJECTED THE APPLICATION OF THE APPELLANT MERELY ON SUSPICIO US AND SURMISES WHICH IS BAD IN LAW. SHE DID NOT PASS THE SPEAKING ORDER GIVING POINT-WI SE REASONS FOR REJECTION OF THE APPLICATION U/SEC. 154 OF THE ACT. IT IS THEREFORE KINDLY PRAYED THAT THE UNLAWFUL O RDER OF THE HON'BLE COMMISSIONER OF INCOME TAX (APPEALS) PASSED U/SEC. 154 OF THE ACT MAY KINDLY BE CANCELLED / QUASHED AFTER PROVIDING AN OP PORTUNITY OF BEING HEARD TO THE APPELLANT. (EMPHASIS PROVIDED) DATE OF HEARING 0 3 .08.2016 DATE OF PRONOUNCEMENT 2 8 .09.2016 I.T.A .NO.-4835/DEL/2015 PAGE 2 OF 4 2. AT THE TIME OF HEARING AN ADJOURNMENT PETITION WAS MOVED ON BEHALF OF THE ASSESSEE SEEKING TIME. HOWEVER CONSIDERING THE MATERIAL AVA ILABLE ON RECORD AND THE SPECIFIC GRIEVANCE ADDRESSED BY THE ASSESSEE VIDE GROUND NO. 2 THE LD. SR.DR IN THE CONTEXT OF THE GROUNDS RAISED WAS REQUIRED TO ADDRESS WHETHER THE IMPUGNED ORDER CAN BE SAID TO BE A SPEAKING ORDER WHEREIN THE LD. CIT(A) AT PAGES 1 TO 6 EXTRACTS THE WRITTEN SUBMISSIONS OF THE ASSESSEE AND DECIDES THE SAME WITH THE FOLLOWIN G OBSERVATION:- 2. I FIND THAT THIS IS NOT A MISTAKE APPARENT FROM RECORD WHICH CAN BE RECTIFIED U/S 154. HENCE THE REQUEST FOR RECTIFIC ATION U/S 154 IS REJECTED. 3. ON A PERUSAL OF THE SAME THE LD. SR.DR WAS UNAB LE TO DEFEND THE ORDER. ACCORDINGLY AFTER HEARING THE PARTIES CONSIDERING THE SPECIFIC GROUND RAISED THE IMPUGNED ORDER I FIND CANNOT BE SUSTAINED AS IT IS A NON-SPEAKING ORDER W HEREIN THE LD.CIT(A) HAS NEITHER ADDRESSED THE FACTS NOR HAS CONSIDERED THE ARGUMENT S AND HAS ALSO NOT GIVEN HIS REASON FOR REJECTING THE GROUNDS. MERELY REPRODUCING THE WRIT TEN SUBMISSION CANNOT BE SAID TO BE MEETING THE STATUTORY MANDATE AS SET OUT IN SUB-SEC TION (6) OF SECTION 250 OF THE INCOME TAX ACT 1961. THE PROCEDURE PRESCRIBED THEREIN FO R DISPOSAL OF THE APPEAL IS MANDATORY AND CANNOT BE SKIPPED AS THE CORRECTNESS OF THE CON CLUSION WHEN CHALLENGED CANNOT BE ASCERTAINED AS THE REASONING AND DISCUSSION ON ARGU MENTS IS MISSING. ACCORDINGLY THE ISSUE IS RESTORED BACK TO THE FILE OF THE CIT(A) WI TH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE AN OP PORTUNITY OF BEING HEARD. THE RECORD SHOWS THAT NO REFERENCE HAS BEEN MADE WHETHER ANY O PPORTUNITY WAS PROVIDED OR NOT AS ONLY THE CONTENTS OF THE PETITION HAVE BEEN REPRODU CED. IT GOES WITHOUT SAYING THAT AN AUTHORITY WHILE ADJUDICATING UPON THE ISSUES BEFORE IT MUST NECESSARILY ENSURE THAT EFFECTIVE OPPORTUNITY OF BEING HEARD IS GRANTED TO THE PERSON WHO WOULD BE ADVERSELY AFFECTED BY THE ORDER. IN THE PECULIAR FACTS OF THE PRESENT CASE I T IS EVIDENT THAT NO OPPORTUNITY OF HEARING I.T.A .NO.-4835/DEL/2015 PAGE 3 OF 4 HAS ALSO BEEN EVIDENTLY GRANTED. THUS NOTWITHSTAND ING THE CONCLUSION THAT MERE REPRODUCTION OF THE PETITION AND DISMISSAL OF THE S AME BY ONE LINE CANNOT BE SAID TO BE A SPEAKING ORDER EVEN OTHERWISE THE IMPUGNED ORDER IT IS HELD CANNOT BE SUSTAINED. 3.1. RIGHT TO BE HEARD IS AN IMPORTANT RIGHT TO WHI CH A PARTY WHO IS FACED WITH AN ADVERSE VIEW IS ENTITLED TO AUDI ALTERAM PARTEM IS ONE OF THE MOST FAMOUS AND CELEBRATED RULE OF NATURAL JUSTICE. THE PRINCIPLES OF NATURAL JUSTICE ARE THOSE WHICH HAVE BEEN LAID OUT BY THE COURTS AS BEING THE MINIMUM PROTECTION OF THE RIGHT S OF AN INDIVIDUAL AGAINST THE ARBITRARY PROCEDURE THAT MAY BE ADOPTED BY A JUDICIAL QUASI- JUDICIAL AND ADMINISTRATIVE AUTHORITY WHILE MAKING AN ORDER AFFECTING THOSE RIGHTS. A CA REFUL PERUSAL OF THE CONSISTENT JUDGEMENTS OF THE APEX COURT WOULD SHOW THAT IT HAS CONSISTENTLY BEEN HELD THAT THE RULES OF NATURAL JUSTICE ARE NOT EMBODIED RULES AND THE S AID PHRASE IS NOT AND CANNOT BE CAPABLE OF A PRECISE DEFINITION. THE UNDERLYING PRINCIPLE OF NATURAL JUSTICE EVOLVED UNDER THE COMMON LAW IS TO CHECK ARBITRARY EXERCISE OF POWER BY THE STATE OR ITS FUNCTIONARIES. ACCORDINGLY THE PRINCIPLE BY ITS VERY NATURE IMPLI ES THE DUTY TO ACT FAIRLY I.E. FAIR PLAY IN ACTION MUST BE EVIDENT AT EVERY STAGE. FAIR PLAY D EMANDS THAT NOBODY SHALL BE CONDEMNED UNHEARD. 3.2. IN THE CELEBRATED JUDGEMENT OF THE APEX COURT IN THE CASE OF A.K.KRAIPAK VS- UNION OF INDIA (1969) 2 SCC 262 IT IS OBSERVED THAT THE AIM OF RULES OF NATURAL JUSTICE IS TO SECURE JUSTICE OR TO PUT IT NEGATIVELY TO PREVENT MISCARRI AGE OF JUSTICE. THE SAID RULES ARE MEANS TO AN END AND NOT AN END IN THEMSELVES AND THOUGH IT I S NOT POSSIBLE TO MAKE AN EXHAUSTIVE CATALOGUE OF SUCH RULES HOWEVER IT CAN BE READILY S AID THAT THERE ARE TWO BASIC MAXIMS OF NATURAL JUSTICE NAMELY AUDI ALTERAM PARTEM AND NEMO JUDEX IN RE SUA. IN THE PRESENT FACTS OF THE CASE WE ARE CONCERNED WITH THE MAXIM AUDI ALTERM PARTEM WHICH AGAIN MAY I.T.A .NO.-4835/DEL/2015 PAGE 4 OF 4 HAVE MANY FACETS TWO OF THEM (A) NOTICE OF THE CASE TO BE MET; AND (B) OPPORTUNITY TO EXPLAIN. THEIR LORDSHIPS HAVE CAUTIONED THAT THESE RULES CANNOT BE SACRIFICED AT THE ALTAR OF THE ADMINISTRATIVE CONVENIENCE OR CELEBRITY. ACCOR DINGLY THE ISSUE IS RESTORED BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO PASS A SPEAK ING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEI NG HEARD. 4. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 28 TH SEPTEMBER 2016. SD/- (DIVA SINGH) JUDICIAL MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI