2022 (2) TMI 1245 - AT - Income Tax

Validity of orders passed by CIT-A - denail of natural justice - assessment concluded under Section 153C r.w.s. 144 - on account of closure of the business the Director of the company had sought employment abroad - As submitted by the learned A.R. pending the appeal proceedings before the learned CIT(A) remand report has been called from the AO who had done the same without giving opportunity to the assessee to cross examin the witnesses -submission that when the assessee s representative had gone to the AO s office for cross examination the AO denied opportunity of cross examination on the ground that no person from the assessee company in the capacity of Director/Managing Director appeared and that the authorised representative is not permitted to cross examination the witnesses HELD THAT - The basic principle of natural justice demands that if any evidence is being used against the assessee the same must be put to the assessee for rebuttal. In the present case admittedly it is an ex-parte assessment. Even before the Tribunal in the original proceedings it is fairly admitted that the Director of the company is no more operating the company and on account of losses suffered she has gone abroad for employment. It is also an admitted fact that it is not necessary that the assessee should cross examine or the Director of the company should cross examine the witnesses. Assessees can fully authorise a representative to do cross examination. To that extent the AO s view that the authorised representative cannot cross examine the witnesses is admittedly erroneous. In these circumstances in the interest of natural justice the issues in these appeals are restored to the file of the AO for readjudication after granting adequate opportunity of being heard to the assessee. All issues are left open

Summary

Issues involved:
Appeal against orders of CIT(A)-3 for multiple assessment years, Ex-parte assessment under Section 153C r.w.s. 144, Delay in filing appeal, Opportunity for cross-examination of witnesses, Non-cooperation from assessee's side, Restoring issues for readjudication, Natural justice principles.

Analysis:

1. Appeal against CIT(A) Orders:
The appeals were filed by the assessee against the orders of the CIT(A)-3, Cochin for various assessment years. The initial assessment was concluded under Section 153C r.w.s. 144 of the Income Tax Act, 1961. Due to the closure of the business post a search operation, the Director of the company sought employment abroad. The Tribunal had previously remitted the issue back to the file of the CIT(A) for fresh adjudication.

2. Cross-Examination of Witnesses:
During the appeal proceedings before the CIT(A), a remand report was called from the Assessing Officer (AO) without giving the assessee an opportunity to cross-examine the witnesses. The authorized counsel represented the assessee for cross-examination, but the AO denied this opportunity citing the absence of the Director/Managing Director. The Tribunal acknowledged that the assessee can authorize a representative for cross-examination, and it was a mistake to deny this right. Therefore, the issues were restored to the AO for readjudication, ensuring the authorized representative is permitted to cross-examine witnesses.

3. Natural Justice and Non-Cooperation:
The principle of natural justice requires that evidence used against the assessee must be presented for rebuttal. The Tribunal noted the non-cooperation from the assessee's side but emphasized the importance of providing a fair opportunity for the assessee to respond to the evidence. It was highlighted that the assessee can authorize a representative for cross-examination, and the AO's view restricting this was deemed erroneous. The decision to restore the issues for readjudication was based on ensuring natural justice and granting a fair hearing to the assessee.

4. Conclusion:
In conclusion, the appeals filed by the assessee were partly allowed for statistical purposes, and the issues were remitted back to the AO for readjudication. The Tribunal stressed the importance of adhering to natural justice principles, allowing the authorized representative to cross-examine witnesses, and ensuring a fair opportunity for the assessee to respond to the evidence used against them.

This detailed analysis of the judgment highlights the key issues addressed by the Tribunal and the rationale behind the decision to restore the issues for readjudication, emphasizing the principles of natural justice and fair hearing for the assessee.