2006 (10) TMI 129 - HC - Income Tax

Refence u/s 256 - cash book seized during the search operation - Tribunal refused the assessee s right to cross-examine the persons whose statements were relied on for making the addition - HELD THAT - We find that the copies of the rough cash book and the statements of the partners of M/s. Vishwakarma Oil Traders which were recorded have been provided to the applicant and in fact the applicant had also submitted its reply. In the letter an opportunity to cross-examine was asked for only in case the statements have not been recorded. Further we find that the applicant had proper opportunity to controvert the material gathered by the assessing authority and used against it there has been compliance with the principles of natural justice. Thus we are of the considered opinion that the Tribunal was fully justified in the view it had taken. We accordingly answer the question referred to us in the affirmative i.e. in favour of the Revenue and against the assessee. There shall be no order as to costs.

Summary

Issues Involved:
1. Refusal of the right to cross-examine witnesses.
2. Adherence to principles of natural justice.
3. Applicability of the Supreme Court judgment in Kishinchand Chellaram v. CIT [1980] 125 ITR 713.

Issue-wise Detailed Analysis:

1. Refusal of the right to cross-examine witnesses:
The primary issue was whether the Tribunal was correct in law in refusing the assessee's right to cross-examine the persons whose statements were relied upon for making the addition of Rs. 1,18,799. The assessee had requested the Assessing Officer to summon the partners and employees of M/s. Vishwakarma Oil Traders and provide an opportunity to cross-examine them. The Tribunal concluded that as the statements had already been recorded during the assessment proceedings of M/s. Vishwakarma Oil Traders and copies were provided to the assessee, there was no need to summon the said persons for cross-examination. The Tribunal held that the assessee's request was conditional on the statements not being recorded, which was not the case here.

2. Adherence to principles of natural justice:
The assessee argued that the rough cash book and statements of the partners of M/s. Vishwakarma Oil Traders could not be used against it without providing an opportunity to cross-examine the individuals. The Tribunal found that the assessee was given copies of the rough cash book and the statements, and had ample opportunity to explain the entries. The Tribunal determined that the principles of natural justice were adhered to, as the assessee had the opportunity to controvert the material gathered by the assessing authority.

3. Applicability of the Supreme Court judgment in Kishinchand Chellaram v. CIT [1980] 125 ITR 713:
The assessee relied on the Supreme Court decision in Kishinchand Chellaram v. CIT, which held that evidence used against an assessee must be disclosed to them, and the assessee must be given an opportunity to cross-examine the person making the statement. However, the Tribunal distinguished this case, noting that the statements in question had already been recorded, and the assessee had been provided with copies and had submitted replies. The Tribunal concluded that the facts of the present case did not warrant the application of the Kishinchand Chellaram judgment, as the assessee had been given sufficient opportunity to address the evidence against it.

Conclusion:
The Tribunal was justified in its decision to refuse the assessee's request for cross-examination, as the statements had already been recorded and copies provided. The principles of natural justice were upheld, as the assessee had the opportunity to respond to the evidence. The Supreme Court judgment in Kishinchand Chellaram was deemed not applicable to the facts of this case. Consequently, the Tribunal's decision was affirmed, and the question was answered in favor of the Revenue and against the assessee.