AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (4) TMI 196
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....posed six questions of law for consideration. 4. In the hearing today, learned counsel for the appellant submits that the following question is a substantial question of law arising out of the order of the Tribunal which would correctly reflect the dispute between the parties. It is as under: "Whether the Tribunal could ignore and discredit the documentary evidence i.e. the TDS certificate and annual return of deduction of tax filed in Form No.26 (c) by the assessee and rely upon the oral evidence of the sundry creditors given behind the back of the assessee?" 5. Appellant is an assessee under the Act carrying on the business of commission agent for M/s. Parle Products, Mumbai which includes transportation of its products all over the country. For the assessment year 2001-2002, appellant filed return of income disclosing taxable income of Rs.2,51,398.00. Assessment case of the appellant was selected for scrutiny. Following scrutiny, assessing officer passed the assessment order dated 29.03.2004 under Section 143(3) of the Act. Amongst other disallowances, assessing officer disallowed an amount of Rs.11,71,893.00 shown by the appellant as receipts from trade creditors. Conseque....
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....h has been rendered unsustainable in law. 10. Mr. Prasad, learned Standing Counsel however submits that due opportunity of hearing was granted to the appellant by the assessing officer during the assessment proceedings. Substance of the statements made by the creditors were also made available to the appellant. Appellant did not raise any ground before the first appellate authority that it had insisted for cross-examination of the creditors which was denied by the assessing officer and for which it could not properly defend itself in the assessment proceedings. Mr. Prasad submits that issue raised in this appeal is factual which has been gone into not only by the primary authority i.e., the assessing officer but also by two lower appellate authorities. Therefore, in an appeal under Section 260A of the Act, such a finding of fact may not be reopened. He therefore seeks dismissal of the appeal. 11. Submissions made by learned counsel for the parties have received the due consideration of the Court. 12. To appreciate the rival submissions in the context of the substantial question of law which we have framed today, let us examine the orders passed by the revenue authorities. 13. B....
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....hich confirmation letter was submitted, it was pointed out that no such letter was issued by M/s. Kuldip Vasta, proprietor of M/s. Trans India Express who had stated that he had received only commission brokerage from the appellant to the tune of Rs.8,000.00. According to him, no amount was receivable from the appellant as on 31.03.2001. Similarly it was brought to the notice of the appellant that another transporter namely M/s. New Royal Express Road Ways had also denied that amount of Rs.1,84,739.00 was receivable from the appellant as on 31.03.2001. Appellant was also informed that the information furnished regarding outstanding dues to be paid to M/s. Life Transport Agency and M/s. Amar Lorry Suppliers was not acceptable in absence of supporting evidence. 16. From a perusal of the above, what is discernible is that the assessing officer did not inform the appellant that Mr. Kuldip Vasta had made a sworn statement under Section 131 of the Act denying any outstanding dues from the appellant. On the contrary, assessing officer informed the appellant that outstanding credits to M/s. Trans India Express and M/s. New Royal Express Road Ways could not be accepted as the said creditor....
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.... whether appellant would want to confront Mr. Kuldip Vasta. 19. Tribunal on the other hand adopted a strange approach. Learned counsel for the appellant had submitted before the Tribunal that opportunity for cross-examination was not given to the appellant. This was answered by the Tribunal by holding that cross-examination is not always necessary. However Tribunal once again relied upon the statement of Mr. Kuldip Vasta that he did not sign the confirmation letter. 20. From the above, it becomes quite clear that the revenue authorities had relied upon statements and evidence made by the creditors adverse to the appellant, which were not furnished to the appellant. That apart, claim of the appellant to cross-examine the transporters who according to the appellants had issued confirmation letters about the outstanding credits but subsequently retracted was denied. Revenue had evidently relied upon the sworn statement of Mr. Kuldip Vasta recorded under Section 131(1)(b) of the Act which was adverse to the appellant. Therefore, the appellant should have been afforded an opportunity to rebut the same by cross-examining the deponent for extracting the truth. Failure to provide such an....