X

Maxim of “audi alteram partem”cannot be sacrificed at the altar of administrative convenience or celebrity

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.

CA Prarthana Jalan

Hon’ble Delhi ITAT has in the case of Raman Kumar Kapoor v/s ACIT has held that Maxim of “audi alteram partem”cannot be sacrificed at the altar of the administrative convenience or celebrity. In the case assessment was done wherein certain additions were done. Aggrieved by the same the appellant filed an appeal before the CIT(A) . The appellant could not be present for the hearing of the appeal and had sought adjournments a couple of time. Finally after adjourning the case the CIT(A) passed the order ex-parte by confiming the assessment order. Aggrieved by the same appeal was filed before the Hon’ble ITAT who remanded the matter back to the CIT(A) after considering the Maxim of “audi alteram partem”. The Hon’ble ITAT observed as under :-

“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. fairIt is seen that the right to be heard is an important right to which a party who is faced with an adverse view is entitled to. “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. play in action must be evident at every stage. Fair play demands that nobody shall be condemned unheard.

In the celebrated judgement of the Apex Court in the case of A.K.Kraipak –vs- 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 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 alterm partem which again may have many facets two of them (a) notice of the case to be met; and (b) opportunity to explain. Their Lordships have cautioned that these rules cannot be sacrificed at the altar of the administrative convenience or celebrity.

Having thus addressed the legal position qua the right to be heard we are necessarily required to address the corresponding duty of the party invoking the said right. It is necessary to bear in mind as a caution that it cannot be overemphasized that the Right to be heard has a corresponding duty that the party invoking the discretion of the Court has to itself ensure that it does not abuse the exercise of discretion in its favour. It is seen that in the facts of the present case the assessee who has been represented through his counsel has repeatedly sought an adjournment which is evident from the above quoted paras. However being of the view that the assessee should not suffer on account of the fault of the counsel and considering the plea raised by the assessee before the Tribunal by way of the present appeal we deem it appropriate to restore the issue back to the file to the CIT(A) with the direction to decide the same in accordance with law after giving the assessee a reasonable opportunity of being heard”

Read Other Articles / Analysis by CA Prarthana Jalan

Categories: Income Tax

View Comments (5)

  • I don't think that the decision of the ITAT is correct.As recorded in the order of CIT(A), the appellant did not appear for hearing;in fact, he didn't also appear before the ITAT and the appeal was decided in his favour by relying upon the well known Supreme Court's judgment in Kirpaik's case, which is an authority on principles of natural justice.
    All that the principles of natural justice require is to give "opportunity of hearing" and if the opportunity is not availed of, it would be a clear case of abuse of the process of the court.The conduct of the appellant is borne out by his repeatedly not availing the opportunity provided to him both by CIT(A) as also ITAT.

    N.K.Bajpai,
    Retired Member, CESTAT, New Delhi
    Advocate, Supreme Court of India

  • Agree with Sri Bajpaiji. The principle requires granting of opportunity,and not necessarily hearing the party.

  • I agree with Mr.Bajpai; it is evident that assessee did not utilise the opportunity granted.

  • The appellant and assessee are running a scheme of "let the appeal be pending and wait for the next AO and try to convince him - if he is not convinced, lets wait and let him be replaced - now try to convince the replaced AO, if not - repeat". And convince i mean "by any means possible". What a jack

X

Headline

Privacy Settings