Ita/33/2010 Of Ayesha Abbas v. The Income Tax Officer

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19 DAY OF JANUARY, 2016) PRESENT THE HON’BLE MR. JUSTICE N.K.PATIL ANTI THE HON’BLE MRS. JUSTICE S. SUJATHA I.T.A. Nos. 33/2010 & 1119/201 BETWEEN: omt Ayesha AbbasL/R of Late Sri S.H. Abbas,Nehru Nagar,pagar,ohimoga District. .. Appellant (By Sri A. Shankar & Sri M. Lava, Advs.) AND: The Income Tax OfficerWard-2, Gopal Gowda Extension,100 feet road,oshimoga — 977 204. ... Respondent (By Sri K.V. Aravind, Adv.) These ITAs are filed under Section 260-A of I.T. Act, 1961against the order dated 31.08.2009 passed in ITA Nos.123 &|124/BANG/2009, tor the Assessment years 1997-98 & 1998-99, |praying to (i) formulate the substantial questions of law stated)therein; (11) allow the appeal and set aside the order passed by theITAT, BangaloreinITA|Nos.123&124/BANG/2009dated31.08.2009. These ITAs coming on for Hearing this day,|N. K. PATIL Jdelivered the following: JU DGMENT These appeals are by the appellant questioning the legality|and validity of the impugned order dated 31.08.2009 passed in|L.T.A.Nos.123 & 124/Bang/2009 on the file of the Income Tax|Appellate Tribunal, “A” Bench, Bangalore, raising the following|substantial questions of law: (a)Whether the Tribunal is justified in law in.hearing the appeal ex-parte without following the)principles of natural justice on the tacts and)circumstances of the case?| (b) Whether the Tribunal was justified in law in)holding that the Id. CIT (Appeals) has not followed thedirection of the Hon’ble High Court and consequently|gave a perverse finding? (c)Whether the Tribunal was justified in law in|holding that the proceedings under Section 148 of the|Income-tax Act, 1961 is valid on the facts andcircumstances of the case? (d)Without prejudice whether the Tribunal ought tohave adjudicated the issue on merits or atleast’directed to the CIT (A) to look in to the claim of the|appellant on the facts and circumstance of the case? iaRespondenthereinhad|filed I.T.A.Nos.123.CG124/Bang/2009 for the assessment years 1997-98 and 1998-99|against the order dated 03.10.2008 passed by the Commissioner ofIncome Tax (Appeals) Hubli. The said appeals had come up for|consideration before the Appellate Tribunal on 31.08.2009. The|Appellate Tribunal after hearing the learned counsel appearing for|the respondent and treating the appellant herein ex-parte, allowedthe appeals filed by the respondent — Revenue for the assessment|years 1997-98 and 1998-99. Aggrieved by the said order dated|31.08.2009 passed by the Income Tax Appellate Tribunal, “A”|Bench, Bangalore, appellant has presented these appeals. 3.We have heard the learned counsel for the appellant|and the learned counsel appearing for the respondent. 4Learnedcounselappearingforthe|ori Shankar. A, at the outset submitted that the impugned order|passed by the Income Tax Appellate Tribunal, “A” Bench,|Bangalore, is liable to be set aside and the matter is liable to be|remanded back to the Appellate Tribunal for consideration of the|matter atresh in accordance with law. Jo substantiate the said|submission, he vehemently submitted that the order impugnedis |an ex-parte order, which is passed without considering the requestmade by 8.R.Kiron & Co., Chartered Accountants vide letter dated|22.08.2009 and in gross violation of the principles of natural|justice. Therefore, it is submitted that on this ground alone, the.impugned order passed by the Income Tax Appellate Tribunal, “A”Bench, Bangalore, may be set aside and the matter may be|remanded back for consideration atresh in accordance with law|and all the contentions of both parties may be left open. appellant | 5Learned counsel for the respondent supported the|impugned order passed by the Income Tax Appellate Tribunal and| appellant | 5Learned counsel for the respondent supported the|impugned order passed by the Income Tax Appellate Tribunal and| submitted that inspite of opportunity being provided, nobody|represented the appellant herein when the matter was taken up forconsideration and hence, after hearing the learned counsel for therespondent herein and perusing the material available on record,|the Income Tax Appellate Tribunal has passed the _ ordeimpugned. He further submitted that except producing the letter,the Chartered Accountant had not produced any authenticated|acknowledgment. However, he does not dispute that the order is |passed without compliance of the principles of natural justice and|therefore, fairly submitted that the matter may be remanded back|to the Appellate Tribunal with a direction to pass appropriate orderin accordance with law. | 6.On careful consideration of the contentions of learned|counsel for both parties and on perusal of the order impugned|dated 31.08.2009 passed in I.T.A.Nos. 123 & 124/Bang/2009 on|the file of the Income Tax Appellate Tribunal, “A” Bench,|Bangalore, for the assessment years 1997-98 and 1998-99, it is|manifest on the face of the same that nobody represented the|appellant before the Appellate Tribunal as specifically referred in 6 paragraph No.3 of its order. Therefore, on the basis of the request|made by the learned counsel appearing for the respondent, the|matter was taken up for hearing and the same was concluded ex-parte. T.It is significant to note that 8S.R.Kiron & Co.,Chartered Accountants had made a request by a letter dated|22.08.2009 to grant a fortnight’s time as he had gone abroad to|admit his son to a Medical College, but unfortunately, he was|hospitalized on the suspicion of HIN1, Meningitis and Dengue andwas under treatment. [t is further stated in the letter that Mr..S.R.Kiron himself had undergone minor surgery on 22.08.2009.|But, there is no reference in the entire impugned order regarding|the request made by 8.R.Kiron & Co., Chartered Accountants on behalf of the appellant. However, it is pertinent to note that as per|the order sheet maintained by the Appellate Tribunal, the matter|was posted on 11.08.2009 and the same was ordered to be listed|on 24.08.2009 and the order impugned was passed on|31.08.2009, a week thereaiter. It establishes from the same thatthe Appellate Tribunal has proceeded and passed the order| ignoring the principles of natural justice. The Appellate Tribunal|ought to have taken note of the same and afforded opportunity to the legal representatives of the deceased — assessee, who had_pleaded time on medical grounds. 8.Therefore, we are of the considered view that the order|impugned is vitiated for non-compliance of principles of natural|justice. Accordingly, the first substantial question of law is|answered in favour of the assessee and against the revenue. On|this ground alone, the appeals filed by the appellant are allowed|without going into further merit and demerit of the case. Impugned order dated 31.08.2009 passed in I.T.A.Nos. 123& 124/Bang/2009 on the file of the Income Tax Appellate|Tribunal, “A” Bench, Bangalore, is hereby set aside. The matter is remitted back to the Appellate Tribunal forreconsideration afresh and to pass appropriate orders in|accordance with law after giving opportunity of hearing to both theappellant and respondent, as expeditiously as possible, at any| rate, within a period of three months from the date of appearanceof the parties before the Appellate Tribunal. All the contentions of both parties are left open. Both parties are directed to appear before the jurisdictionalTribunal personally or through their counsel without notice on|08.02.2016 at 10.30 AM and collect the next date of hearing. Since the matter is remanded, the other questions raised in|these appeals do not survive for consideration. Sd/-JUDGE Sd/-JUDGE VP