1977 (6) TMI 89 - HC - VAT and Sales Tax

Court dismisses tax revision cases, petitioner not entitled to cross-examination right. Emphasizes failure to request key.

The court dismissed the tax revision cases, ruling that the petitioner was not entitled to claim the right of cross-examination of Pappachan as part of ... - Issues Involved:1. Whether the right of cross-examination is an essential ingredient of the 'reasonable opportunity' to be afforded to an assessee under section 17(3) of the Kerala General Sales Tax Act, 1963.Detailed Analysis:1. Right of Cross-Examination as Part of Reasonable Opportunity:The primary issue in these tax revision cases is whether the right of cross-examination is an essential component of the 'reasonable opportunity' that must be provided to an assessee under section 17(3) of the Kerala General Sales Tax Act, 1963. The petitioner contended that he should have been given the opportunity to cross-examine Pappachan before the latter's statement was used against him in the best of judgment assessment. The court examined whether the precedent set in K.T. Shaduli v. State of Kerala, which equated section 17(3) of the Sales Tax Act with section 23(3) of the Indian Income-tax Act, 1922, was correctly applied. The court noted that the Division Bench in K.T. Shaduli had ruled that the right of cross-examination is part of the reasonable opportunity to be afforded to the assessee if a request for the same is made. However, in the present case, no such request was made by the petitioner at any stage of the proceedings.2. Application of Section 53 of the Act:The petitioner also argued that section 53 of the Act, which grants the assessing authority powers similar to those of a court under the Code of Civil Procedure, should be invoked to summon Pappachan for cross-examination. The court dismissed this argument, stating that no request or application to summon Pappachan was made to any of the authorities, and thus, the submission based on section 53 could not be accepted.3. Judicial Precedents and Principles of Natural Justice:The court referred to various judicial precedents to determine whether the right of cross-examination is an inherent part of the reasonable opportunity under section 17(3). It cited decisions such as Fedco (P.) Ltd. v. S. N. Bilgrami, which outlined the two essential elements of reasonable opportunity: the opportunity to be heard and the reasonableness of that opportunity. The court also referenced decisions like Kanungo & Co. v. Collector of Customs, Calcutta, and C. Vasantlal & Co. v. Commissioner of Income-tax, Bombay City, which held that the principles of natural justice do not necessarily require the right of cross-examination in all cases.4. Specific Findings in the Present Case:On the facts of the present case, the court found that the petitioner did not make any request for cross-examination of Pappachan before the Sales Tax Officer or the Appellate Assistant Commissioner. The court emphasized that the petitioner's failure to request cross-examination at any stage undermined his claim. The court also noted that the Appellate Assistant Commissioner had incorrectly relied on the Gujarat High Court's decision in Jayantilal Thakordas v. State of Gujarat, which was contrary to the ruling in K.T. Shaduli.5. Supreme Court's Affirmation of K.T. Shaduli:The court acknowledged that the Supreme Court had recently affirmed the decision in K.T. Shaduli, but clarified that the Supreme Court did not endorse an absolute right of cross-examination as part of the reasonable opportunity under section 17(3). The court interpreted the Supreme Court's ruling as allowing flexibility, depending on the terms of the statute, the nature of the proceedings, the conduct of the party, and the circumstances of the case.Conclusion:The court concluded that the petitioner is not entitled to claim the right of cross-examination of Pappachan as part of the reasonable opportunity under section 17(3) of the Act or on the grounds of natural justice. The tax revision cases were dismissed with no order as to costs. The court emphasized that the petitioner's failure to request cross-examination at any stage was a critical factor in its decision.Petitions dismissed.