Directed the AO to allow cross examination of witness by the assessee

[CA Bimal Jain]

The Hon’ble Jharkhand High Court in MADHU KORAH VERSUS INCOME TAX DEPARTMENT THROUGH DIRECTOR GENERAL, INCOME TAX, PATNA BIHAR AND OTHERS - 2023 (6) TMI 94 - JHARKHAND HIGH COURT had directed the Assessing Officer (“the AO”) to allow cross examination of witness by the assessee in accordance with provision of Indian Evidence Act, 1872 (“the Indian Evidence Act”).

Facts:

The Commissioner of Income Tax (Appeal) Jamshedpur, (“the CITA”) passed 2 orders dated December 26, 2013, and August 14, 2014, permitting cross examination of witness to Madhu Korah (“the Petitioner”). Accordingly, cross-examination of some witness was done in 2019. Thereafter no further development took place. The Revenue department issued summons to the Petitioner for cross-examination of witness and the Petitioner participated in cross-examination process. However, the Assistant Commissioner of Income Tax restricted cross examination process by denying the questions asked by the Petitioner during cross examination.

Aggrieved by such restriction the Petitioner raised objections which were disposed by the Revenue Department vide Order dated January 24, 2023 ("the Impugned Order”).

Being aggrieved, the Petitioner has filed this petition inter alia contending that the Petitioner should be allowed to conduct cross examination on its own or through an independent officer.

Issue:

Whether the AO has power to discard the question of the Petitioner during the cross examination?

Held:
The Hon’ble Jharkhand High Court in MADHU KORAH VERSUS INCOME TAX DEPARTMENT THROUGH DIRECTOR GENERAL, INCOME TAX, PATNA BIHAR AND OTHERS - 2023 (6) TMI 94 - JHARKHAND HIGH COURT held as under:

• Observed that, the presiding officer has power to control the proceeding. However, the officer has to follow the guidelines and the provision of the Indian Evidence Act.
• Directed the Petitioner, to file petition for recall of the witnesses who have been earlier cross-examined and seek the answers of the question which have been initially discarded by the AO.
• Further, directed the Revenue department to provide effective cross-examination opportunity in accordance with the provisions of the Indian Evidence Act.

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