2019 (7) TMI 1873 - HC - Income Tax

Request for opportunity to cross examine - HELD THAT - There is no material before this Court to demonstrate that communication dated 03.06.2019 was served on the writ petitioner. In any event, as the sole respondent has acceded to the request for cross examination, this Court is of the view that no prejudice would be caused, if the writ petitioner is given an opportunity to cross examine the aforesaid two individuals on a specified date. Writ petitioner sought permission to cross examine three individuals, but permission was accorded to cross examine two individuals. On instructions, learned Revenue counsel submits that permission was accorded with regard to two individuals as the other individual namely Shri.K.Srinivasulu has turned hostile. In the light of the narrative thus far, the following order is passed a) The impugned communication dated 28.06.2019 bearing reference 'C.No.ACLFS6523P/CC 2(4)/2019-20' is set aside. To be noted, impugned communication is set aside solely for facilitating the writ petitioner to get an opportunity to cross examine and it is not set aside on merits. In other words, this Court is not expressing any view or opinion on merits of the matter. b) By consent of both sides, it is now agreed that the date, time and venue for cross examination of aforesaid two individuals namely Shri.S.Nagarathinam and Shri.S.Murugesan shall be 01.08.2019 (Thursday), at 12.00 Noon in the office of the Deputy Commissioner of Income Tax, Central Circle-2(4), Investigation Wing, Room No.111, 1st Floor, No.46, Mahatma Gandhi Road, Chennai 34. c) It is submitted on instructions that the writ petitioner's lawyer / Advocate shall cross examine the aforesaid two witnesses on the aforesaid date, time and venue. d) After cross examination in the aforesaid manner, it is open to the respondent to reissue the impugned communication with regard to aspects other than cross examination aspect.

Summary

Issues:
Scrutiny assessment for Assessment Years 2011-2012 to 2017-2018, Cross examination request for three individuals, Communication regarding cross examination, Allegation of non-receipt of communication, Setting aside the impugned communication, Fixing date for cross examination, Disposal of the writ petition.

Scrutiny Assessment:
The subject matter of the instant writ petition pertains to a scrutiny assessment for Assessment Years 2011-2012 to 2017-2018. The writ petitioner sought permission to cross examine three individuals, out of which permission was granted for two individuals as the third individual had turned hostile.

Communication for Cross Examination:
The respondent claimed that a communication was sent to the writ petitioner on 03.06.2019, allowing cross examination of two individuals on 07.06.2019. However, the writ petitioner alleged non-receipt of this communication. Subsequently, another communication was sent on 28.06.2019 stating that the writ petitioner did not respond to the earlier communication, leading to the request for cross examination being treated as exhausted.

Allegation of Non-Receipt of Communication:
The pivotal submission of the writ petitioner was that the communication dated 03.06.2019 was never received, and it came as a surprise when the subsequent communication was received. The Court noted that there was no evidence to prove the service of the initial communication on the writ petitioner.

Setting Aside the Impugned Communication:
The Court set aside the communication dated 28.06.2019 to allow the writ petitioner an opportunity to cross examine the two individuals. This decision was made to ensure that the writ petitioner was not prejudiced by the alleged non-receipt of the earlier communication.

Fixing Date for Cross Examination:
By mutual agreement, a new date for cross examination of the two individuals, namely Shri.S.Nagarathinam and Shri.S.Murugesan, was fixed for 01.08.2019 at the office of the Deputy Commissioner of Income Tax. The writ petitioner's lawyer was designated to conduct the cross examination on the specified date, time, and venue.

Disposal of the Writ Petition:
The Court disposed of the writ petition with the directions to conduct the cross examination as scheduled. It was clarified that the setting aside of the impugned communication was solely for facilitating the cross examination and did not reflect any opinion on the merits of the case. The respondent was permitted to reissue the communication for other aspects post the cross examination process. No costs were awarded, and connected miscellaneous petitions were closed as a result of the judgment.