The failure to provide a hearing before passing an adverse order constitutes a violation of natural justice, necessitating a new hearing.

JUDGMENT

Shekhar B. Saraf, J.

This is a petition under Article 226 of the Constitution of India wherein the writ petitioner is aggrieved by the order dated March 23, 2021 passed by the respondent No.2/Principal Commissioner of Income Tax-2, Agra in a revision application filed by the petitioner under Section 264 of the Income Tax Act, 1961 (hereinafter referred to as 'the Act').

2. The main contention of the petitioner in the present writ petition is that there has been violation of principles of natural justice as no opportunity was granted to the petitioner for presenting his reply and making his submissions in person.

3. Mr. Suyash Agarwal, appearing on behalf of the petitioner, submits that a notice was issued under Section 264 of the Act dated March 6, 2021 wherein the date was fixed for the assessee to appear on March 10, 2021. Mr. Agarwal fairly submits that the petitioner could not appear on that particular date and was also unable to file any application for adjournment. He, however, submits that the order was not passed on March 10, 2021 and another date was fixed by the Department for March 16, 2021. On March 16, 2021, there appears to be a noting on the file that indicates that the revision application of the assessee under Section 264 of the Act was rejected. The aforesaid noting is provided hereinbelow:-

"After careful consideration of of the assessee's submission and AO's report, order under Section 264 issued rejecting assessee's petition."

4. Per contra, counsel appearing on behalf of the Department submits that the petitioner did not file any application for adjournment and, therefore, the order was passed ex-parte. He further submits that no further date was required to be granted to the assessee as no application was filed by the assessee for adjournment. With regard to noting of March 16, 2021, he submits that the file was looked at by the Officer on that date and order of rejection was passed.

5. It is to be noted that the material date of the order is March 23, 2021 and not March 16, 2021. Upon a perusal of the documents, it appears that though the matter was fixed for March 10, 2021 but no order was passed by the officer concerned on that date. In fact, the matter was posted for a subsequent date wherein no notice was given to the assessee. The documents reveal that on March 10, 2021 there was no noting whatsoever done by the officer concerned. In fact, it was not even noted that the petitioner did not appear on that date.

6. In my view, as the revision application was filed by the petitioner under Section 264 of the Act, the officer concerned ought to have granted a further opportunity to the petitioner to appear since the matter was not heard out and decided on that date. One need not elaborate on the virtues of hearing in person before an adverse order is passed against an assessee. In light of the same, I am of the view that the officer concerned should have granted another opportunity to the petitioner and only thereafter passed an order that was adverse to the petitioner. Not having done so, there appears to be a violation of principles of natural justice.

7. In light of the above, the order dated March 23, 2021 is quashed and set-aside with a direction given to the officer concerned to issue notice for hearing to the petitioner and hear out the matter within a period of two months from date. I make it clear that no adjournment shall be granted to the petitioner and her non participation shall entitle the officer concerned to pass an ex-parte order. The entire process should be completed within a period of three months from date.

8. The writ petition is, accordingly, allowed.