AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2018 (8) TMI 2101
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....e emerging facts of the case in the proceeding pending before respondent No.2 under Section 19 and 26 of Prohibition of Benami Property Transactions Act, 1988 (in short "PBPT Act, 1988"), the petitioners filed two interim applications dated 20.02.2018 available on record as Annexure-P/2A & P/2B requesting the Adjudicating Authority to direct to the Initiating Officer for production of certified copies of the documents relied upon as annexed in Annexure-B-1, E, F, I, J, K, L & M of the impugned Reference on which the Initiating Officer has made foundation of the allegation that the petitioners are the beneficial owner of the property alleged as Benami. The petitioners have also claimed that the Initiating Officer be also directed that the petitioners be permitted to cross-examine the makers and authors of the documents whose names have been mentioned in paragraph 4 of the application and their statement have been relied by the Initiating Officer in the impugned Reference. By and large, the petitioners have claimed that the certified copies of the documents shown in the list attached with the impugned Reference be supplied to them and they may also be provided an opportunity to cross....
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....etitioners had to appear before the authorities, but they did not appear despite notices/summons issued to them. He has also contended that the petitioners have also not furnished any explanation sought by way of show cause notice issued under Section 24(1). He also submits that maximum documents relied upon by them have been provided to the petitioners alongwith show cause notice and even thereafter considering the requirement of the petitioners vide letter dated 11.09.2017 and 18.09.2017, the petitioners have been asked to collect the requested documents on 25.09.2017 and their representative collected the same on 27.07.2017. However, learned counsel for the petitioners denied the contentions of respondents and submitted that the authority is under obligation to pass order on their applications but said authority has neither passed any order on their applications nor has assigned any reason for not considering the applications submitted by the petitioners. Therefore, left with no option, the petitioners are seeking intervention of this Court in the matter claiming that the authority be directed to at-least pass some order on their applications following the minimum requirement of....
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....oss-examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law, as cross-examination is an integral part and parcel of the principles of natural justice." 8. Based on the above enunciation of law, the petitioners have claimed that it is highly unjustified on the part of the respondents thereby not considering their applications and not passing any order on their applications and as such it is clear violation of the principle of natural justice. 9. Shri Lal appearing for respondent No.3 placed reliance on various decisions, they are - AIR 1967 SC 122 (State of Jammu and Kashmir vs. Bakshi Ghulam Mohammad; AIR 2006 SC 1445 (Transmission Corporation of A.P. Ltd. and Others vs. Sri Rama Krishna Rice Mill); decision of Division Bench of Allahabad High Court in 1987 (32) ELT 520 (Heera Electrodes vs. Union of India (UOI) and another; 1999 (2) RajasthanLR. 194 (Ganpat Singh and another vs. Ashok Kumar and Others); 2011 (269) ELT 221 (Century NF Castings vs. Union of India); 2010(3) AllLJ 649 (Smt. Java Kalia vs. Smt. Manju Agrawal and another) and 1977....
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....inspection is no longer a live question. It is true that when Bakshi Ghulam Mohammad was directed to file his affidavits he had not been given inspection of' all the documents and files which the Government proposed to use to support their case. On behalf of Bakshi Ghulam Mohammad it was said that this was a denial of the rules of natural justice. It is not necessary to consider this question because it is admitted that since then inspection of the entire lot of files and documents has been given. At the final hearing of the allegations, therefore, Bakshi Ghulam Mohammad would no longer be at any disadvantage. 21. The next point is as to the right of cross-examination. This claim was first based on the rules of natural justice. It was said that these rules require that Bakshi Ghulam Mohammad should have been given a right to cross-examine all those persons who had sworn affidavits supporting the allegations against him. We are not aware of any such rule of natural justice. No authority has been cited in support of it. Our attention was drawn to Meenglas Tea Estates v. Its Workmen, but there all that was said was that when evidence is given viva voce against a person be must ....
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....ction is as follows:-- "The Commission shall have the power of a Civil Court, while trying a suit under the CPC Svt. 1977, in respect of the following matters, namely:- (a) summoning and to enforce the attendance of a person and examining him on oath; (b) .... (c) receiving evidence on affidavits." 23. It is not in dispute that the CPC of Jammu and Kashmir State referred to in this section is in the same terms as the Indian Code of Civil Procedure. Order 19 r. 1 of the Indian Code reads as follows:-- "Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable: Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit." 24. The contention is that the powers of the Commission therefore to order a fact to be proved by affidavit are subject to the proviso that that power cannot be exercised w....
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....rnment is, it appears, in the region of four hundred. The statute could not have intended that all of them had to be examined in open court and subjected to cross-examination, for then, the proceedings of the Commission would be interminable. We feel no doubt that the Act contemplated a quick disposal of the business before the Commission, for, otherwise, the object behind it might have been defeated. While on this topic, we would impress upon the Commission the desirability of speedy disposal of the inquiry. For these reasons, in our view, s. 4(c) of the Act does not confer a right on a party appearing before the Commission to require a witness giving evidence by an affidavit to be produced for his cross-examination. The Commission would, of course, permit cross-examination in a case where it thinks that necessary. The view that we take should not put any party in any difficulty. He can always file affidavits of his own denying the allegations made in affidavits filed on behalf of the other party. If the evidence on both sides is tendered by affidavits, no one should be at any special disadvantage. We have also to remember that s. 9 of the Act gives the Commission power to regulat....
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....r cross examination the consumer may be granted an opportunity to look into the documents on which the adjudication is proposed. In that event, he will be in a position to know as to the author of which statement is necessary to be cross-examined. The applications for cross-examination are not to be filed in routine manner and equally also not to be disposed of by adjudicator in casual or routine manner. There has to be application of mind by him. Similarly, as noted above, the consumer has to show as to why cross examination is necessary." (emphasis supplied) 12. In case of M.K. thomas (supra), the Full Bench of Kerala High Court dealt with the issue what are the ingredients of reasonable opportunity to be afforded to an assessee and has observed, the relevant extract is as follows;- "10 ....... It was stated that the Income-tax Officer is not bound to disclose the source of his information. Surely this decision cannot be understood as recognising a right of cross-examination as part of reasonable opportunity or of natural justice in assessment proceedings............ If, as noticed in the decisions referred to, the assessing authority is not bound to disclose the source of....
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....sued referring the matter to the Adjudicating Authority, the Initiating Officer after passing the provisional attachment of property is obliged to draw up the statement of the case and refer it to the adjudicating authority. On receipt of reference under Sub-section (5) of Section 24, the adjudicating authority shall issue notice to the stakeholders as provided under Sub-section (1) of Section 26 of the Act. Section 26(3) makes it clear that the adjudicating authority will examine the entire issue and relevant material. Sub-section (3) of Section 26 reads as under: "(3) The Adjudicating Authority shall, after- (a) considering the reply, if any, to the notice issued under sub-section (1); (b) making or causing to be made such inquiries and calling for such reports or evidence as it deems fit;and (c) taking into account all relevant materials, provide an opportunity of being heard to the person specified as a benamidar therein, the Initiating Officer, and any other person who claims to be the owner of the property, and, thereafter, pass an order- (i) holding the property not to be a benami property and revoking the attachment order; or (ii) holding the property to b....