TaxTMI 
TaxTMI 
2020 (11) TMI 953
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....e disposed of by this common order. 3. The petitioner's late father, Mr.K.Murugesan, was a partner in various firms. During the life time of K.Murugesan, the respondent, on 10.08.2017, conducted search under Section 132 of Income Tax Act, 1961, in all the concerns run by him, namely, M/s.Cholan Auto Finance, M/s.Cholan Finance Corporation, M/s.No.1 Auto Finance, M/s.Helpline Motor Finance and M/s.Vivek Associates. 4. It is the case of the petitioner that statements were obtained from the petitioner's late father continuously for three days and he was kept in confinement in the search premises. According to him, during the search, certain loose sheets were confiscated by the respondent and incomplete data was also retrieved from the newly installed software. It is the case the petitioner that he is not fully aware of the business transactions of his deceased father. It is the further case of the petitioner that the statements were obtained by the respondent in printed question answer format on 10.08.2017, 12.08.2017, 26.03.2018 and 08.05.2018 and the copies of those statements were furnished to him only later. 5. According to the petitioner, the statements obtained ....
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....al justice, while passing the impugned assessment orders. The petitioner was afforded with opportunity of hearing at every stage. A notice under Section 153A of the Income Tax Act 1961 was issued on 01.03.2019 and after the filing of return of income by the petitioner (assessee), a notice under Section 143(2) of Income Tax Act 1961, was issued on 22.08.2019. A detailed proposal listing out the various issues involved in the case along with the additions proposed on those issues was sent to the petitioner (assessee) on 08.11.2019. The scanned images of the relevant seized materials were also sent as attachments. The petitioner (assessee) was provided time till 21.11.2019. The petitioner (assessee) requested time of another one week and he submitted his objection only on 02.12.2019. (e) The petitioner never made any specific request for cross examination. The addition made by the respondent under the impugned assessment orders is not solely on the basis of the statement of a person without any supporting document. There are solid evidences in the form of seized documents and sufficient reasons have been recorded in the impugned assessment orders. (f) The search was ....
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.... the harassment by the respondent, the petitioner's father died, is false. (l) Each of the statement contains the deposer's own handwritting, a declaration to the effect that the sworn statement was given "voluntarily and without any force, threat or coercion". Therefore, it is false to allege that the statements are obtained by intimidation. In the absence of evidence to the contrary, sworn statement is admissible in evidence. (m) As per the procedure laid down for search under Section 132 of the Income Tax Act 1961, the copies of sworn statements are provided only when they are applied for. The fact that the petitioner's father did not apply for copies of sworn statements before his demise, cannot be held against the department. (n) The respondent in his capacity, as quasi-judicial authority, has carried out his duty of verifying whether the deposer has been made aware of the consequences of false testimony. The questions and answers of the sworn statements could not have been pre-determined. The mere fact that the statements are in typed format than in manuscript can in no way undermine their evidentiary value. (o) Insofar as the c....
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....tion 34 of Indian Evidence Act, 1872, and hence, it is not admissible in evidence. According to him, the Authorised Officer, who seized the loose sheets from the petitioner's father, was not subjectively satisfied with regard to the genuineness of the same. Therefore, according to him, the contents of the loose sheets without subjective satisfaction has been erroneously accepted under the impugned assessment orders. 10. It is the contention of the learned Counsel for the petitioner that the operation performed by the respondent on 10.08.2017, is only a survey under Section 133A of the Income Tax Act, as materials seized by them from the petitioner's father and the statements obtained from him do not have any evidentiary value. He referred to Section 133A of Income Tax Act, which deals with power of survey, to substantiate his submission and compared Section 133A with Section 132(4) of the Income Tax Act. 11. The learned Counsel for the petitioner submitted that the respondent do not have the power to pass an assessment order under Section 153A of the Income Tax Act for the assessment year 2018-19, since the search was conducted only on 10.08.2017 and as on that date, ....
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....upon by the respondent. According to him, no sufficient opportunity was granted to the petitioner to dispute the contentions of the respondent. It is contended by the learned Counsel for the petitioner that the impugned assessment orders have been passed in a pre-determined manner relying upon the diary notes and loose sheets, which do not have any evidentiary value. Therefore, according to him, principles of natural justice has been violated by the respondent, while passing the impugned assessment orders as well as while issuing the consequential demand notices. Therefore, according to him, the Writ Petitions are maintainable and the impugned assessment orders as well as the consequential demand notices will have to be quashed. 15. It is also submitted by the learned Counsel for the petitioner that no action has been initiated against the beneficiary of the petitioner's father during the course of his business activities. According to him, the action of the respondent to initiate proceedings for concealment of income against the petitioner's father is not without bona fides. 16. Per contra, the learned Standing Counsel for the respondent would submit that the impugne....
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....he Income Tax Act are passed only pursuant to a search under Section 132 of the Income Tax Act and not pursuant to a survey conducted under Section 133A of the Income Tax Act. The learned Standing Counsel for the respondent also referred to Section 153A of the Income Tax Act and would submit that the assessment under Section 153A of the Income Tax Act can be done for six assessment years, immediately preceding the assessment year relevant to the previous year, in which such search is conducted and for the relevant assessment year or years. 20. The learned Standing Counsel for the respondent also pointed out that the assessment orders have been passed under Section 153A r/w Section 143(3) of the Income Tax Act and assessment has been made for the assessment years 2018-19, which is the current assessment year as on the date of the search, ie., on 10.08.2017, which is in accordance with Section 153A(1)(b) of the Income Tax Act. Insofar as the rejection of the petitioner's request for cross examination is concerned, the learned Standing Counsel for the respondent drew the attention of this Court to the impugned assessment orders and would submit that as seen from the written rep....
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....nable to raise the same without any pleading to that effect, being a legal submission, this Court is constrained to give its findings on this contention also. 24. Insofar as the primary contention raised by the learned Counsel for the petitioner that the impugned assessment orders have been passed in violation of principles of natural justice are concerned, this Court will have to first consider the meaning of "principles of natural justice" in order to get an answer to the said contention. 25. Principles of natural justice is a very old concept. Natural justice is an expression of English Common Law and involves a procedural requirement of fairness. The principles of natural justice originated from Common Law in England and it is based on two latin maxims and they are (a) Nemo Judex in causa sua or Nemo debet esse judex in propria causa or Rule against bias (No man shall be a judge in his own cause) and (b) Audi Alteram parterm or the rule of fair hearing (hear the other side). In the case on hand, the petitioner has raised the second ground, namely, no fair hearing was given to him by the Assessing Officer. 26. This Court shall now examine as to whether the respondent ha....
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....er will not amount to violation of principles of natural justice. The relevant paragraph of the aforesaid decision is extracted hereunder: "2. In this case, the High Court has set aside the order of assessment on the ground that no opportunity to cross-examine was granted, as sought by the assessee. We are of the view that the High Court should not have set aside the entire assessment order. At the highest, the High Court should have directed the assessing officer to grant an opportunity to the assessee to crossexamine the witness concerned. Be that as it may, we are of the view that, even on this particular aspect, the assessee could have gone in appeal to the CIT (Appeals). The assessee has failed to avail of the statutory remedy. In the circumstances, we are of the view that the High Court should not have quashed the assessment proceedings vide the impugned order." 30. In the case on hand, reasons have been given by the respondent for rejection of the request made by the petitioner for cross examination of a particular witness, whose statement deals only with a particular transaction and not the entire transaction, for which additions of income have been made by the ....
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.... Constitution of India, is not the correct forum. 33. With regard to the contention raised by the petitioner that if the statements of copies were provided to the petitioner's father before his demise, he could have retracted his statements is concerned, the said contention will have to be necessarily rejected, in view of the fact that under Section 132(A) of the Income Tax Act, a request will have to be made by the person from whose custody any books of account or other documents were seized. In the case on hand, as seen from the documents filed along with the typed set of papers, this Court does not find any such request made by the petitioner's father during his life time seeking for copies of sworn statements given by him at the time of search under Section 132(A) of the Income Tax Act. 34. With regard to the evidentiary value of loose sheets is concerned, Section 132(4) of the Income Tax Act, permits the authorised officer to seize books of accounts and other documents. The judgment relied upon by the learned Counsel for the petitioner in the case of CBI vs V.C.Shukla and others reported in 1998 (3) SCC 410, has no bearing for the case on hand, as that case was d....