TaxTMI 
TaxTMI 
2024 (5) TMI 912
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....ioner was served with the show cause notice dated 9th March, 2022 issued under Section 148A (b) of the said Act. The petitioner had duly responded to the said notice and in his response, the petitioner had highlighted the fact that inasmuch as the authorities had relied on the evidence collected from third parties, unless the petitioner is given an opportunity to controvert the evidence of such third parties, no reliance ought to be placed on such evidence from such third parties. The said notice under Section 148A (b) of the said Act, ultimately culminated in an order dated 20th April 2022 issued under Section 148A (d) of the said Act. 3. Mr. Sanyal, learned advocate appearing for the petitioner by drawing attention of this Court to parag....
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....d been collected by the assessing officer, the remedy in the form of appeal has become otiose. As such there can be no bar for the petitioner to invoke the extra ordinary jurisdiction of this Hon'ble Court, as the proceeding also stands vitiated on the ground of violation of principles of natural justice. 5. By placing reliance on an unreported judgment delivered by the Hon'ble Division Bench of this Court presided over by the Hon'ble the Chief Justice delivered in the case of Gee Bee Nirman Co. Private Limited v. Income Tax Officer, Ward-5(1), Kolkata & Ors. in MAT 1667 of 2023, on 2nd January, 2024, Mr. Sanyal submits that in the identical set of facts, the Hon'ble Division bench of this Court taking note of the request made by the asses....
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....e on the basis of the search and seizure conducted at Amit Agarwal Group, Kolkata and during the post-search enquiry, it had come to light that the petitioner had given out of books cash loans and received back repayment in cash from the said Amit Kumar Agarwal. In the factual backdrop as aforesaid the petitioner while responding to the said show cause notice by his response dated 29th March 2022 had, inter alia, claimed that an opportunity should be provided to the petitioner to confront the said Amit Kumar Agarwal to unearth the truth so as to controvert the evidence. By placing reliance on the said response, Mr. Sanyal submits that the petitioner, in effect, sought permission to cross examine the said Amit Kumar Agarwal. This apart, Mr. ....
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....e the assessing officer, inter alia, praying for issuance of summons on Amit Kumar Agarwal for him to be produced for the purpose of cross examining him. Although, Mr. Sanyal has strenuously argued that failure on the part of the authorities to afford opportunity to the petitioner to cross examine the said Amit Kumar Agarwal has the effect of vitiating the order passed under Section 148A (d) of the said Act as also the entire assessment proceeding, I am of the view that the petitioner having not approached this Court earlier and having not made any specific prayer for cross examining the said Amit Kumar Agarwal before the assessing officer at the stage of the proceeding under Section 147 of the said Act, the present writ petition cannot be ....
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....ns to Mukesh Banka and fixing a fresh date for cross-examination or the second methodology that can be adopted is to ignore the statements recorded by Mukesh Banka by affording a fresh opportunity to the assessee by way of personal hearing through video conferencing or in person and thereafter, consider the materials placed by the assessee and proceed to take a decision in accordance with law. Therefore, by not providing an opportunity to cross-examine Mukesh Banka, the authority is precluded from relying upon the statement recorded from the said person. 8. For the above reasons, we are inclined to interfere with the order impugned in the writ petition dated 24th May, 2023. 9. Accordingly, the appeal is allowed and the application (I.....
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....of Amit Kumar Agarwal cannot vitiate the entire assessment order on such ground. Admittedly, there is an alternative remedy in the form of appeal, though the petitioner submits that the time to prefer an appeal by reasons of pendency of the writ petition has expired. Taking note of the fact that the writ petition was filed on 1st April 2024, I am of the view that the petitioner should be permitted to approach the appellate authority under the said Act. 14. If the petitioner approaches the appellate authority within a period of 15 days from date and files appeal along with the server copy of this order with an application under Section 5 of the Limitation Act, 1963 explaining the delay, the appellate authority shall consider the same and ha....