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TMI Blog1989 (6) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... supplied to the appellant of all the documents, the appellant should be allowed opportunity to state its case before the assessment is completed. This view of the CIT (A) was upheld by the Tribunal in its order dt. 19th of July, 1984 and, accordingly, the matter was restored to the file of the IAC. Consequent to such a setting aside direction, the present assessment proceedings had been conducted and assessment have been completed. The ITO, who obtained the jurisdiction of passing of the assessment order, placed reliance on the Rajasthan High Court decision in the case of Vimal chandra Golecha vs. ITO (1981) 25 CTR (Raj) 175 : (1982) 134 ITR 119 (Raj). The assessee was provided with the photo copies of the so-called legalised document in the process of providing his adequate opportunity to represent his case. The assessee s objection were noted down by the ITO during the course of proceedings. This claim of the assessee was rejected by the ITO on the ground that the photo copies are copies of the documents which have been attested by the Consular Agent of India in Geneva and relying on the Rajasthan High Court decision case of Vimal Chandra Golecha he was of the view that this cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I hold that the legalised documents which have been relied upon by the ITO were used in accordance with the Indian Evidence Act and since the entries relate to the books of the appellant firm, the onus squarely lay in the Court of the appellant to establish the authenticity of the legalised documents. In this regard, no mala fide intention for utilising legalised documents against the appellant were alleged. Therefore, the piece of evidence in the shape of legalised document was legally utilised and the contentions to the contrary are not acceptable. I will go to the extent of saying that in case the legalised documents are challenged by the taxpayer, it is their duty and onus to produce John Ashlyn so that the case made out by the ITO can be effectively controverted." 5. In view of the rival submissions made by the appellant's counsel as well as by the ITO, I am of the view that the matter should go back to the file of the ITO who would examine all the materials in his possession after giving reasonable opportunity of being heard to the appellant since during the course of appellant proceedings, it was argued by the appellant's counsel that figures taken are arbitrary and second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent examination and verification and certain grounds related to the above and also in the setting aside of the assessment for re-framing it do novo. Mr. N.M. Ranka and Mr. K.K. Boliya addressed elaborate arguments for and against and heavy reliance was placed on various judicial pronouncements. The assessee also provided the copy of the Supreme Court decision dismissing the Special Leave Petition filed by Vimal Chandra Golechathe ruling of the Rajasthan High Court reported Vimal Chandra Golecha vs. ITO on which heavy reliance had been placed by the Revenue. The various authorities that have been placed reliance on by the counsel was Kishinchand Chellaram vs. CIT (1980) 19 CTR (SC) 360 : (1980) 125 ITR 713 (SC), 39 STC 478 14 STC 489, 69 STC 229, AIR 1967 Assam 74, Munnalal Murlidhar vs. CIT (1971) 79 ITR 540 (All). Chiranji Sal Steel Rolling Mills vs. CIT (1972) 84 ITR 252 (P H) Addl. CIT vs. Miss Lata Mangeshkar (1974) 97 ITR 696 : AIR 1989 All 17, AIR 1977 Gauhati 31, AIR 1952 Madhya Bharat 146, AIR 1948 PC 114, AIR 1966, (SC) 1457 Head Note 'A' page 1461 Para 8, AIR 1975 (SC) 1748, Head Note 'A' page 1479 Para 7, AIR 1987 All page 83, Para 6 8, AIR 1959 (SC) 960 Para 7, AIR 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Mr. John Ashlyn was exposed and also indicating the black-mailing tactics of John Ashlyn. 5. The learned Sr. Departmental Representative had also provide the plethora of rulings. He had also referred to the various rulings brought out by the Authors Chaturvedi Pithisaria's in their IT Law Vo. III, Third Edition page 2801 in regard to the right of cross examination has to be examined in the light of reasonability and is not necessarily a part of reasonable opportunity. Reliance was also placed on the same Authors' observation in page 2779 in regard to proceedings of assessment not being a Civil right, technical rules of evidence not applicable. Specific references were made to S.S. Gadgil vs. Lal Co. (1964) 53 ITR 231 (SC), Mriganka Mohan Sur vs. CIT (1979) 120 ITR 529 (Cal) and also heavy reliance was placed on (1981) 25 CTR (Raj) 125 : (1982) 134 ITR 119 (Raj) The sum and substance of the arguments of the learned Sr. Departmental Representative was that though the assessee had sought for the cross-examination of Mr. John Ashlyn as well as the production of the original documents and the assessee was also prepared to bear the expenses, but in view of the various rulings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a foreign national. The AAC should have adjudicated upon this claim of the assessee of examination of production of the original documents and cross-examination of John Ashlyn, especially when he had pin-pointed by stated and provided copies of accounts, which purportedly are from his books of accounts, knowing fully well that the officers, who had carried out the investigative work of examining John. Ashlyn and collecting the evidence had not submitted any report or have not stated to have carried out independent enquiry and examination of the accounts, the copies of which are purportedly coming out of the books of John Ashlyn. There is no doubt that the Courts in India cannot question the signature of the Consular Agent of India, who had attested the copies but this by itself does not mean Court can proceed only on this attestation without calling for the production of the original document. The law of evidence clearly provide the circumstances in which copies could be admitted as primary evidence and one of such instance is if both the parties agree that the copies so provided before the Court is the true copy of the original and without production of the original evidence th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the assessee had violated the provisions of FERA by either under-invoicing or not routing the whole foreign exchange through the official banking channels, i.e., only part of the foreign exchange as brought into India and the other part not being disclosed at all. In the instant case, the claim of the Revenue has been that the same assessee had raised invoice on M/s Salas at a particular value and thereafter the same goods have been sold further by raising another invoice in which value of the goods have either become three times or four times. This claim of the Revenue is hinting at a proposition of the assessee either receiving only 1/3rd of the real consideration of foreign exchange or 1/4th of the foreign exchange, which would mean that more than 66 per cent of the foreign exchange is not routed through the banking channels. 9.1 It would be necessary at this point of time to observe that the entire investigation in regard to such kind of transactions were examined simultaneously by the Enforcement directorate and the IT Department. As already observed earlier, there had been some proceedings before the Enforcement Directorate but at the time when this order is being di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention to black-mail with the ulterior motive, etc. The AAC shall also keep in mind the ruling of the Calcutta High Court in the case of Sachindra kumar Gosh vs. Prativadevi (1983) Eastern Law Reporter 121 and Subarnabarik vs. State of Orissa AIR 1976 Orissa 236 where it was ruled that a Photostat copy of the document may be admitted as evidence, if the original is also produced. He shall also keep in mind the ruling the Supreme Court in the case of CIT vs. Simon Carves Ltd. (1976) CTR (SC) 418 : (1976) 105 ITR 212 (SC) where their Lordships have observed, although it is part of their duty to ensure that no tax, which is legitimately due from an assessee should remain unrecovered, they must also at the same time not act in a manner as might indicate that scales are weighed against the assessee,. In this case, their Lordships expressed their inability to subscribe to the view that unless those authorities exercise the power in a manner most beneficial to the Revenue and consequently most adverse to the assessee, they should be deemed not to have exercised it in a proper and judicious manner. The first appellate authority shall also keep in mind that the ITO is not fettered or bound ..... X X X X Extracts X X X X X X X X Extracts X X X X
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