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2022 (3) TMI 918 - AT - Income TaxRevision u/s 263 - denial of natural justice - assessee has argued on the legality of the order passed which is stated to be an arbitrary exercise of power as order is assailed as having been passed without caring to provide reasonable opportunity of being heard to the assessee leading to the order being passed in a mechanical manner - Whether the order has been passed ignoring the submissions of the assessee admittedly received on the ITBP portal and incorrectly noting that no reply has been given by the assessee? - qua the increase in share application pending before the CIT(A), the assessee had opted for 'Vivad Se Vishwas Scheme' - HELD THAT:- we deliberate that if the ld. PCIT who knowingly gives inadequate time to the assessee to file its reply considering the reply filed irrelevant notices that the assessee is seeking time, we do not find any reason why the ld. PCIT could not grant a hearing saying that time has been granted fix a date and then pass the order after hearing the assessee. However, in the facts of the present case, ld. PCIT fails to do so. So, whether the reply was noticed or remained un-noticed, the consequences are that if it was noticed, ld. PCIT failed to do what he was required to do and if it was not noticed, then he passed an order mechanically These facts when further noticed in the backdrop where the ld. PCIT after issuing the Short Cause Notice on 23.11.2020 sat over the very same information, made no efforts from any source, whatsoever to address the specific facts or the specific concerns from any other information in the public domain or made any efforts seeking information from the Investigation Wing of the Department, sat over the information for a period of almost 5 months and passed the order upsetting a statutory order which has been passed without any compunction. The said arbitrary exercise of power, we find cannot be upheld. Notwithstanding the fact that the right to be heard is very important and salient right which cannot be allowed to be trifled with. It has been noted judicially across all common law countries of the world. No decisions need be cited to quote that it is a well settled legal position that no party can be visited by an adverse order without being heard. The blatant fact staring on the face of the record is that not only the power has been exercised in an arbitrary, unfair manner contrary to settled legal positions, it has also been exercised where the ld. PCIT himself failed to do what he was required to do. The fact also appears that the provisions of the Act necessitated that the ld. PCIT before upsetting a statutorily passed order exercising the revisionary powers is expected to do the basic exercise of undertaking enquiries etc. at his end. It is incumbent upon him to undertake an enquiry and set out the facts. This exercise, in the facts of the present case has not been done. Accordingly, we find that the appeal has to be allowed. The position of law as considered for service of notice which proceeds on the footing that effective opportunity of being heard was denied to the assessee, we find the order passed deserves to be quashed. Accordingly, considering the factual background as discussed above at length and the position of law, we deem it appropriate to quash the order passed on the legal grounds itself. Hence, the arguments advanced by the parties on merits though noticed in the order need not be adjudicated upon consequently. Appeal of assessee allowed.
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