TaxTMI 
TaxTMI 
2021 (10) TMI 918
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....Tax Act, 1961' [hereinafter 'IT Act' for the sake of brevity, convenience and clarity]. 3. The above takes us to Sections 142 and 143 of IT Act, is learned Revenue counsel say. 4. Be that as it may, prayer in the captioned writ petition is in two parts. One part or in other words, the first limb of the prayer pertains to a Mandamus qua respondent to act on four communications dated 29.07.2019, 18.02.2021, 05.04.2021, 06.05.2021. To be noted, according to the learned senior counsel for the writ petitioner, these are representations made by the writ petitioner on the contrary, learned Revenue counsel submits that these are in response to certain communications sent by the writ petitioner in the course of assessment. The second limb of the prayer pertains to permission to examine/cross examine a list of persons adumbrated in Schedules A and B and providing documents enlisted in Schedule C. This Court is informed that reference to Schedules A, B and C are as set out in page Nos.14 to 19 of the writ affidavit, prayer in main writ petition and those three schedules read as follows: 5. Ideally, the Schedules should have been annexed to the writ petit....
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.... this schedule, the Petitioner Firm requested to allow the cross examination of Shri C.Arul Pandi and Shri M.Kandhan, A.D.(Mines). Cross examination of Shri C.Arul Pandi: On 06.08.2019, a summon u/s.131 of the Act was issued to Shri C.Arul Pandi requesting him to appear on 19.08.2019. On the same day, a letter was issued to the Petitioner Firm requesting to come and cross examine Shri C.Arul Pandi on 19.08.2019. On 19.08.2019, a letter was received from Shri C.Arul Pandi seeking adjournment by citing his health condition. On 20.08.2019, one more summon u/s.131 of the Act was issued to Shri C.Arul Pandi posting the case for hearing on 27.08.2019. On this date, Shri Dinesh, Advocate appeared on behalf of Shri C.Arul Pandi and filed a letter from his client and sought for adjournment. On the same day, the representative of the assessee appeared for cross examine before the respondent on 20.09.2019. On this date, there was no response. It is the Petitioner Firm under whom Shri C.Arul Pandi has worked. The Petitioner Firm has not taken any step to produce Shri C.Arul Pandi before the Respondent. However, the Petitioner Firm is requesting the Department to allo....
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....nti Corruption will not arise. b. Statement of Yard owners: In response to the summons issued u/s.131 of the Act, 26 Sand yard owners appeared and answered that they had no knowledge about the Petitioner Firm. When the Sand yard owners have explicitly admitted that they had no knowledge about the Petitioner Firm and the Department has not proposed to utilize the same in the proposed assessment order and furnishing the copy of the same to the Petitioner Firm will serve any purpose. c. Outcome of the verification from the office of the Public Works Department about illegal Sand Mining: The Public Works Department has categorically denied about the existence of illegal sand mining. The Department is not proposed to utilize about the verification in the proposed assessment order. In view of this, furnishing of verification report to the Petitioner Firm will serve any purpose.' 8. The above is the stated position of the revenue is learned Revenue Counsel say. 9. Notwithstanding the above stated position of the Revenue, learned senior counsel drew the attention of this Court to a communication dated 20.11.2020 from the respondent ....
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....g about the activities of the Petitioner Firm is legal or illegal. It is about the income admitted or not from the bussiness activities.' 11. Adverting to the counter affidavit, learned Revenue counsel submitted that aforementioned paragraph No.21 of the writ affidavit has been met at page No.10 of the counter affidavit and the same reads as follows: 'Para 21.It is also submitted that on 20.11.2020, the respondent had sent a letter to the petitioner, wherein the respondent had informed the petitioner to examine the yard owners who were examined by the department between 17.11.2020 and 19.11.2020. In this regard, the statements of the yard owners were not given and instead the department gave their own summary of the said statements and called upon the petitioner to examine the yard officials. This course of action is completely alien to the principles of natural justice and shows the actual intent of the respondent to merely give the petitioner a moonshine opportunity to present its case.' 12. At this juncture, this Court was informed that a rejoinder has been filed by the writ petitioner. It is not clear as to what are the new facts that surf....
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....t in the counter affidavit in pages 8 to 10. Regarding one of them, averments in the counter affidavit are as follows: 'Shri Arul Pandi was an accounts incharge of Kappur Sand yard at Villupuram. A statement u/s.132(4) was recorded from him on 03.02.2017. To provide a cross examination of Shri Arul Pandi, a summon u/s.131 of the Act was issued on 06.08.2019 with a request to appear on 19.08.2019 for cross examination. On 19.08.2019, a letter wa received from Shri Arul Pandi seeking adjournment by citing his health reasons. On 20.08.2019, one more summon u/s.131 of the Act was issued to Shri Arul Pandi posting the case for hearing on 27.08.2019. On this date, Shri Dinesh, Advocate, appeared on behalf of Shri Arul Pandi and filed a letter seeking adjournment. On the same day, the representative of the Petitioner appeared for cross examination of the witness. Since Shri Arul Pandi was not appeared, cross examination was not allowed. A letter was issued to the Petitioner on 12.09.2019 requesting to produce Shri Arul Pandi for cross examination on 20.09.2019. Inspite of repeated request and summon issued, Shri Arul Pandi was reluctant and failed to appear and thereby, cross....
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....request may be made by the Petitioner for cross examination, which will be considered in the light of the principle of natural justice and fair play." Thus, by considering the facts, the statement of Shri M.Kandhan is not going to be used as a basis for determining the total income of the Petitioner Firm, the request of the Petitioner for allowing the cross examination of Shri M.Kandhan was not considered.' 7. Learned counsel for writ petitioner drew the attention of this Court to judgement of Hon'ble Supreme Court in Andaman Timber Industries Vs. Commissioner of Central Excise reported in (2016) 15 SCC 785. Learned counsel drew the attention of this Court to paragraphs 6 to 8 of this case law, which read as follows: '6.According to us, not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon th....
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....d counsel for writ petitioner also went on to say that though Andaman Timber's case was rendered under Central Excise Act, the principle is being followed in IT Act cases also. 9. An order made by 'Income Tax Appellate Tribunal' ['ITAT' for the sake of brevity] being order dated 06.11.2018 in Jyoti Gupta Vs. The I.T.O, New Delhi case was also placed before this Court. 10. Discussion regarding aforementioned two case laws will be set out elsewhere in this order. 11. Learned counsel for Revenue, adverting to page no.154 of typed set of papers, elaborated on his submissions captured in the previous listing. Learned Revenue counsel submitted that a notice under Section 142(1) of IT Act being notice dated 14.11.2018 bearing reference C.No.ACLFS6523P/CC 2(4)/2018-19 was issued [Page 45 of typed set of papers]. Writ petitioner responded to the same and it is in this context that 20.11.2020 communication (page 154 of typed set of papers) was issued and that it contains a gist pertaining to the material. In this regard, it was reiterated that this does not mean that the sworn statements of individuals are going to be used against the writ petitioner. In this reg....
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....nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction t....
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....; by itself has a different connotations and dictionary meaning of 'Comment' reads as follows: (scanned and reproduced from New 9th Edition Oxford Advanced Learner's Dictionary) 17. Learned Revenue counsel submits that this practice will be avoided in the days to come. 18. In the considered view of this Court, stated position of the Revenue, which has been captured supra more particularly, the stated position that the sworn statements are not going to be used against the writ petitioner as set out in the counter affidavit and as captured in this order elsewhere supra by itself douses the request for cross-examination. In other words, it draws the curtains on the request for cross-examination. 19. If statements are not going to be used against the writ petitioner, it cannot be gainsaid that the persons, who made the sworn statements have to be cross-examined. Therefore, it is not necessary to further dilate into 'NJP' ['Natural Justice Principle']. 20. Owing to all that have been set out supra, this Court deems it appropriate to dismiss the captioned writ petition. 21. Captioned writ petition is dismissed. Consequently, connected WMP is ....
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....ru.R.Karthikeyan 14 Thiru.G.Sathanantham 15 P. Mohanraj 16 Thiru.M. Thangaraj 3/341 Muthupattinam 17 21, Vandaiyar Nagar, Srinivasapuram, Thanjavur 2226, West 3rd Street, Pudukkottai. South Kulavaipatty Post Alangudi Taluk, Pudukottai Dist. Thiru.C.Chittrambalam 33/93-Kurinjipadi Nagar Thirukattalai (Po) Pudukottai (Dist) 41, Municipal Colony, Thanjavur No.72, Alagarnagar, Pudukottai Jakkampatti, Andipatti MADRA 18 Nila Agency 19 Thiru.R.Anandakumar 20 M/s.Jeyam Construction 21 Thiru.P.Balakrishnan Bommampalayam, Annur Via Coimbatore -53 Thru. V.R Raja Erin Nagar, Kottaiyur, Kuppanur Karaikudi Sivagangai District 23 Thiru.K.Govindaraj 24 1/1, Selvilllam, GDN Salai, Dindigul, Thiru.T. Gnanasekaran No.31, 1st Floor, Ulgadai Street, 25 Thiru.S.Muthusamy 26 Thiru.R. Meyyar 27 Thiru.M. 28 KacheriVeethi, Karambakudi, Pudukottai Kurainadu, Myladuthurai. No.23, Melakulavaipatti, Kulanthiraipatti, Alangudi Taluk, Pudukottai District Murukkanjeri Village, Aranvoyal P.O. Thiruvallur District Venkatesh Babu 48, Kuzhnthairanpu....
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.... 7 K. Muthu 8 K. Govindaraj 9 M. Chokkalingam 10 M. Palanisamy 11 M. Veerappan 12 M. Thirumoorthy 13 M. Viswanathan 14 15 16 17 HIGH P.Karuppaiah R. Chandrasekaran S. Ramesh S.Murugesan S Senthilkumar Periyasamy Thiru A. Ramasamy 21 Thiru M. Thangaraj 22 Thiru. A. Kumar Mirattunilai Post, Thirumayam Taluk. Kothakottai, Alangudy Taluk. 1/1, Selvilllam, PTN Road, Dindigul. Mirattunilai Post, Thirumayam Taluk 107/A, Sengupta Street, Ram Nagar, Coimbatore Alangudi, Pudukkottai Rajali Street, Orathanadu Taluk, Thanjavur Komapuram Post, Kandarvakottai Taluk Karambakudy, Pattukkottai Periyar Nagar, Rajagopalapuram, Pudukkottai. Nambivayal Post, Paramakudy Taluk 1/52, Palaiyur, Alankudi Taluk, Pudukottai District. Machuvadi, Pudukkottat Barundabam, Trichy No. 83 Avudaiyarpatti, Kathakurichi (PO) District Alankudi Taluk, Pudukottai No.3/341 South Muthulampuram, S.Kaluvaipatti, Alankudi Pudukottai District Taluk, Anandha 72, Algar Nagar, Pudukottai District Thiru. A.Rajkapur Kedah 23 24 Thiru. P. Karuppai....