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Qasim Quershi, Prop. M/s Zum Zum Foods India, Ppurana Ganj, Rampur. Vs. ITO, Ward-11, Rampur.
February, 21st 2014
                   (DELHI BENCH `F' NEW DELHI)


                      I.T.A. No.4866/Del/2013
                     Assessment year : 2008-09

           Qasim Quershi,                            ITO,
           Prop. M/s Zum Zum Foods India,            Ward-11,
           Ppurana Ganj, Rampur.               V.    Rampur.

                (Appellant)                    (Respondent)

                     PAN /GIR/No.AABPQ 8627-Q

                 Appellant by : None.
                 Respondent by : Ms. Meenakshi Vohra, Sr. DR.



     This is an appeal filed by the assessee against the order of Ld
CIT(A) 10.4.2013. The application for adjournment was filed by the
counsel of assessee. However, while going through the statement of
facts filed before ITAT, we found that case can be disposed off.
Therefore, the application for adjournment was rejected. We further
found that assessment in this case was completed u/s 144 of the Act
and assessee could not appear before Ld CIT(A) despite various
opportunities given by Ld CIT(A). As noted in his order we further find
that assessee was under tremendous pressure and some police case
was filed against him which got partly settled only on 19.11.2010 on
the directions of Allahabad High Court but the matter was still not
closed and therefore he could not appear before Assessing Officer.
Regarding appeal before Ld CIT(A) the assessee stated that he had
                                    2               ITA No4866/Del/2013

hired a Chartered Accountant who did not appear before Ld CIT(A) and
appeared only on 13.3.2013 and sought further adjournment. He
further stated that he was not aware about non attendance by
Chartered Accountant and therefore he was devoid of hearing.

2.    Ld DR had no objection if the appeal is remitted back to
Assessing Officer for re-adjudication.

3     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 judgments 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
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
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

4     In the celebrated judgment of the Apex Court in the case of AK
Kraipak v. 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
                                        3               ITA No4866/Del/2013

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 alteram partem which again may
have many facets two of them (i) notice of the case to be met                 (ii)
opportunity to explain. Their Lordships have cautioned that these rules
cannot be sacrificed at the altar of the administrative convenience or
celebrity. The assessee has raised ground No.1 with regard to
opportunity of being heard not granted to him. Therefore, we are
inclined to accept the prayer of assessee on a careful consideration of
the legal position and remaining grounds are restored back to the file
of the Assessing Officer with the direction to decide the same in
accordance     with     law   after   giving   the   assessee   a   reasonable
opportunity of being heard. Looking at the facts of the present case,
we deem it appropriate to add that it is hoped that the assessee
utilizes the opportunity so granted responsibly and meaningfully
participating in letter and spirit in the proceedings as the remedies
available to law are not to be abused and courts take a very serious
view where opportunities so granted are mis-utilized.

5       In the result, the appeal filed by the assessee is allowed for
statistical purposes.

6       Order pronounced in the open court on 4th day of February,

    Sd/-                                                   Sd/-
 (DIVA SINGH)                                       (T.S. KAPOOR)
JUDICIAL MEMBER                                 ACCOUNTANT MEMBER

                                    4             ITA No4866/Del/2013

Copy forwarded to:-

  1.   The   appellant
  2.   The   respondent
  3.   The   CIT
  4.   The   CIT (A)-, New Delhi.
  5.   The   DR, ITAT, Loknayak Bhawan, Khan Market, New Delhi.

True copy.

                                                     (ITAT, New Delhi).

Date of hearing                                      4.2.2014

Date of Dictation                                    4.2.2014

Date of Typing                                       4.2.2014

Date of order signed by                              4.2.2014
both the Members &

Date of order uploaded on net
& sent to the Bench concerned.
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