TMI Blog2011 (3) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... al justice are required to be complied with, the same by itself would not mean that the Court would not insist on complying with the fundamental principles of law - Decided in favour of the assessee by way of remand to AO - WRIT PETITION NO. 863 OF 2006 - - - Dated:- 16-3-2010 - RAJES KUMAR AND PANKAJ MITHAL, JJ. R.R. Agrawal for the Petitioner. Shambhu Chopra for the Respondent. JUDGMENT 1. Heard Sri R.R. Agrawal, learned counsel for the petitioner and Sri Shambhu Chopra, learned standing counsel appearing on behalf of respondents. 2. By means of the present petition, the petitioner is challenging the order of the CIT, Moradabad dated 31-5-2006 passed under section 273A of the IT Act (hereinafter referred to as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pproval affects the right of the assessee, thus before refusing to grant the approval opportunity of hearing should be given to the petitioner. In support of the contention he relied upon the Division Bench decision of this Court in the case of S.K. Traders v. Addl. Commr. 2008 UPTC 392 and the decision of the Apex Court in the case of Rajesh Kumar v. Dy. CIT [2006] 287 ITR 91/157 Taxman 168 (SC) which has been approved by the larger Bench of the Apex Court in the case of Sahara India (Firm) v. CIT [2007] 289 ITR 473/161 Taxman 216 (SC). 4. Shri Shambhu Chopra, learned standing counsel supported the order of the CIT, Moradabad and the order of the Chief CIT, Bareilly. 5. Section 273A(1) and (2) reads as follows : 273A. Power to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the excess of income assessed over the income returned is of such a nature as not to attract the provisions of clause (c) of sub-section (1) of section 271. (2) Notwithstanding anything contained in sub-section (1),- ( a ) ** ** ** (b) if in a case falling under clause (c) of sub-section (1) of section 271, the amount of income in respect of which the penalty is imposed or imposable for the relevant assessment year, or, where such disclosure relates to more than one assessment year, the aggregate amount of such income for those years, exceeds a sum of five hundred thousand rupees,no order reducing or waiving the penalty under sub-section (1) shall be made by the CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voluntarily and the assessment was completed on the revised return disclosing the income of tax ₹ 8,59,070 and the assessee had co-operated in the assessment proceeding and paid taxes and interest on the completion of the assessment. The Chief CIT in its order has completely overlooked the report of the assessing authority and has not given any reason for coming to the conclusion that the revised return was not voluntary. In this view of the matter, we are of the view that the order cannot be sustained and is liable to be set aside. Since the order of the CIT, Moradabad is based on the order of the Chief CIT refusing to grant approval, therefore, the order of the CIT, Moradabad dated 26-3-2006 is also liable to be set aside. We accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hemicals (P.) Ltd. v. State of U.P. 2006 UPTC 1128 wherein the following has been held : Section 21(2) though specifically does not say that opportunity is to be afforded to the dealer before granting the sanction by the Commissioner but the principle is well recognized, that even if there is no specific provision in the statute, such opportunity need be given, to make the action taken or order passed in consonance with the principles of natural justice, unless, of course, the statute specifically excludes the applicability of principle of natural justice, such an opportunity is deemed to be in built in the provision, in case any action taken or order passed would effect the rights of any person adversely. In the case of Indian Oil Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions, still compliance of principles of natural justice would be required [See R.V. Kensington Chelsea Rent Tribunal, ex p. MacFariane (1974) 1 WLR 1486]. 55. Justice, as is well known, is not only be done but manifestly seem to be done. If the assessee is put to notice, he could show that the nature of accounts is put to notice, he could show that the nature of accounts is not such which would require appointment of special auditors. He could further show that what the Assessing Officer considers to be complex is in fact not so. It was also open to him to show that the same would not be in the interest of the revenue. It has further held as follows : 61. The hearing given, however need not be elaborate. The notice issued may o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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