TMI Blog2002 (12) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... Dated:- 4-12-2002 - Judge(s) : G. SIVARAJAN., K. BALAKRISHNAN NAIR. JUDGMENT The judgment of the court was delivered by K. BALAKRISHNAN NAIR J.-The point raised for decision in this writ appeal is whether before passing an order under section 142(2A) of the Income-tax Act, 1961, the assessing authority should hear the assessee. The brief facts of the case are the following: The respondent-assessee is a firm engaged in the business of chitty. It filed the returns of income for the assessment years 1998-99 and 1999-2000, respectively, on March 7, 2000, and March 27, 2000. The first appellant took up the matter for assessment. The assessee was directed to appear in his office on May 23, 2000, at 11 a.m. Though the representative of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice, exhibit P7 was quashed giving liberty to the assessing authority to pass fresh orders after hearing the writ petitioner. Feeling aggrieved by the judgment of the learned single judge, the Revenue has filed the present writ appeal. The appellants would submit that the relevant statutory provision does not provide for a hearing. So, according to them, the decision of the learned single judge is unsustainable. Reliance was placed on the decisions in Swadeshi Cotton Mills Co. Ltd. v. CIT [1988] 171 ITR 634 (All); Peerless General Finance and Investment Co. Ltd. v. Deputy CIT [1999] 236 ITR 671 (Cal); Pradeep Maheswari v. CIT [2001] 250 ITR 453 (Ker) and Living Media Ltd. v. CIT [2002] 255 ITR 268 (SC). The relevant statutory provision t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving adverse consequences on him, should not be passed without affording a hearing to him. In the case at hand, the assessee has to spend more than one lakh rupees by way of fee to the chartered accountant as a result of the impugned order exhibit P7. Therefore, it is definitely an order having adverse consequences on him. It is true, the statute is silent as to whether the assessee should be heard before an order is passed under the said sub-section. Now, the principle is well settled in law that unless a hearing is statutorily excluded, any administrator taking a decision affecting the rights of a citizen, is bound to hear him. Byles, J. in Cooper v. Wandsworth, Board of Works (143 ER 414) said, "A long course of decisions beginning wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the principles of natural justice, the apex court in Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851 held as follows; "But what is a civil consequence, let us ask ourselves, bypassing verbal booby-traps? 'Civil consequences' undoubtedly cover infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence." The Supreme Court in Swadeshi Cotton Mills Co. Ltd. v. Union of India [1981] 51 Comp Cas 210; AIR 1981 SC 818, 831 has held as follows: "Conversely, if the statute conferring the power is silent with regard to the giving of a pre-decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of absence of hearing. In the case at hand, there is no emergency to order the audit without hearing the assessee. Further, the post-decisional hearing will not, in any way, redress its grievance as no one will repay the amount paid by it to the auditor. Therefore, the said contention of the Revenue is devoid of any merit. Since the order under section 142(2A) was stayed by this court, the assessment was completed without the special audit. Therefore, in fact, the question framed for decision in this writ appeal has become academic. But learned senior counsel for the Revenue pleaded that this court may render a decision so that it will guide the Assessing Officers in future and therefore we have ventured a decision on merits. For all th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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