Rakesh Kumar, Ballabgarh vs Assessee

Rakesh Kumar, vs ITO, H.No.-31, Panehra Khurd, Ballabgarh. Ward-1(5), PAN-ALCPR5819H Faridabad (APPELLANT) (RESPONDENT)

Appellant by None Respondent by Sh.Gagan Sood, Sr.DR

Date of Hearing 29.06.2015 Date of Pronouncement 30 .06.2015

ORDER

These are three appeals filed by the assessee assailing the correctness of the three separate impugned orders dated 25.11.2013 wherein in 2008- 09 assessment year the penalty imposed by the AO u/s 271(1)(c), 271D and 271E have been upheld by CIT(A), Faridabad. All these appeal are being decided by a common order for the sake of convenience.

2. At the time of hearing, an adjournment petition has been moved on behalf of the assessee. A perusal of the record shows that separate orders dated 25.11.2013 in the three appeals have been passed ex-parte. Considering the material available on record and after hearing the Ld. Sr. DR it was considered appropriate to reject the same

3. A perusal of para 3.1 in ITA No.-930/Del/2014 brings out the fact that the appeal of the assessee was dismissed on account of the fact that the delay in filing the appeal was not explained for which specific purpose an opportunity was provided requiring the assessee to explain the delay on 25.1.2013 and since on the said date there was no representation. The order under challenge was passed on the same date.

I.T.A .Nos.-930, 931 & 932/Del/2014

4. We have heard the Ld. Sr. DR, Mr. Gagan Sood. On a consideration of the above peculiar facts and circumstances which are brought as mentioned in para 3.1 of the impugned order, we find that there is no reference to any date or mode by which it can be concluded that notice was issued to the assessee to address the delay. Apart from that it is further seen that merely because on the first date when the appeal came up for hearing, the assessee was not present after the issuance of notice whose mode and manner of service is not referred to. We find that in the interests of justice, opportunity of being heard has not been afforded to the assessee. 4.1. Before we proceed to elaborate thereon it is first necessary to bring out the relevant facts:-

3.1. "...........................Though the appellant filed a belated appeal, he did not give any reasons as to why the said appeal was filed late. In order to give an opportunity to the appellant to prove that there was substantial cause behind belated appeal, the appellant was asked the appellant to appear before the undersigned on 25.11.2013. Since the appellant failed to respond to the opportunity it follows that he does not have any reasons substantiating filing of belated appeal. In view of these facts, the appeal is dismissed as void ab initio being beyond the stipulated time period laid down in Section 249(2) of the Income tax Act................."

(emphasis provided)

5. Thus, in view of the above-mentioned peculiar facts and circumstances being of the view that on facts, it appears that an effective opportunity of being heard was evidently not made to the assessee. Accordinglt, we deem it appropriate to set aside the impugned order as the Right to be heard is an important right to which 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 rights 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 careful 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 said phrase is not and cannot be capable of a precise definition. The underlying principle of natural justice evolved under the common law is to Page 2 of 4 I.T.A .Nos.-930, 931 & 932/Del/2014

check arbitrary exercise of power by the State or its functionaries. Accordingly, the principle by its very nature implies the duty to act fairly i.e. fair play in action must be evident at every stage. Fair play demands that nobody shall be condemned unheard.

5.1. 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 miscarriage of justice. The said rules are means to an end and not an end in themselves and though it is not possible to make an exhaustive catalogue of such rules however it can be readily said 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 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. Accordingly in view of the above, the impugned order is set aside and the Ld. CIT(A) is directed to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. In the result, ITA No.- 930/Del/2014 is allowed for statistical purposes.

6. Similarly in ITA No.-931 & 932/Del/2014, it was a stand of the Ld. Sr. DR that the facts are more or less identical. A perusal of these orders shows that on 04.07.2013 and 09.10.2013, notice was sent to the last known address of the assessee and in the absence of any compliance, the appeals of the assessee were dismissed by the CIT(A) ex-parte. It is seen from the address appearing in the impugned orders of these two specific appeals that in Column No.-4, the following address of the assessee is mentioned:-

"Shri Rakesh Sharma, S/o-Ravi Shankar, Vill.& PO.-Panhera Khurd, Ballabhgarh-121004."

Page 3 of 4 I.T.A .Nos.-930, 931 & 932/Del/2014

6.1. A perusal of the memo of appeal filed before the ITAT shows that the address is marginally different as a specific house number is also found mentioned. The same is reproduced hereunder:-

"Rakesh Kumar, House No.-31, Punehra Khurd, Ballabgarh, Faridabad"

6.2. In view of this factual position, it is difficult to conclusively hold whether the specific notices mentioned were sent to the correct address of the assessee or not. The issue remains influx as the address is incomplete. Accordingly following the view taken in ITA No.-930/Del/2014, it is considered appropriate to set aside the impugned order and restore the issue back to the file of the CIT(A) with the direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard and in order to ensure compliances the Ld. CIT(A) may take note that the notice be sent to the address mentioned in the memos of appeals extracted in the impugned order herein above.

7. In the result, the appeals of the assessee are allowed for statistical purposes.

The order is pronounced in the open court on 30th of June, 2015.

Sd/-

(DIVA SINGH) JUDICIAL MEMBER

Dated: 30/06/2015 *Amit Kumar*

Copy forwarded to:

1. Appellant

2. Respondent

3. CIT

4. CIT(Appeals)

5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI

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