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TMI Blog2010 (8) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the witness directed the assesese to produce the details of repayment of loan to substantiate his claim of loan. Held that - the order of Tribunal dispensing with the cross examination of the witnesses produced by the assesese could not be sustained. The assessee was to produce the witnesses before the Assessing Officer and the Assessing Officer was permitted to cross examine the witness. - 762 of 2010 - - - Dated:- 24-8-2010 - F. M. IBRAHIM KALIFULLA and M. M. SUNDRESH JJ. K. Subramaniam for the appellant. V. S. Jeyakumar for the respondent. JUDGMENT The judgment of the court was delivered by 1. M. M. Sundresh J.-The Revenue has come up on appeal challenging the order of the Tribunal whereby the order of the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -tax noticed that the residential status as a "non-resident" claimed by the assessee was not correct and completed the assessment under section 144 of the Income-tax Act as best judgment assessment by treating the status of the assessee as resident. The Assessing Officer also initiated proceedings under section 147 of the Income-tax Act by issuing notice under section 148 of the Income-tax Act for the assessment year 2004-05. The Assessing Officer calculated the number of days of stay of the assessee for the assessment year 2004-05 as 192 days and held that the assessee is the resident of India as per the provisions of section 6(1) of the Income-tax Act. Aggrieved by the order of the Assessing Officer, the assessee filed an appeal before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Subramanian, learned senior standing counsel appearing for the Revenue and Mr. V. Jeyakumar appearing for the assessee. 6. We find substantial force in the arguments of the learned senior standing counsel appearing for the Revenue. Rule 46A of the Income-tax Rules clearly stipulates that the Commissioner of Income-tax (Appeals) for the reasons to be recorded, can admit the evidence produced by the assessee in the appeal. However, a perusal of rule 46A(3) clearly shows that the Commissioner of Income-tax (Appeals) cannot take into account any evidence produced under sub-rule (1), unless the Assessing Officer has been allowed a reasonable opportunity to cross-examine the witnesses produced by the assessee. Therefore, the evidence produced b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t time. 9. In a case where the Commissioner of Income-tax (Appeals) is convinced about the reasonable cause, then he has to follow the procedure contemplated under section 46A(3) by providing sufficient opportunity to the Assessing Officer to examine the evidence or document or to cross-examine the witnesses, as the case may be. It is a well settled principle of law that an evidence of a party cannot be relied upon unless an opportunity is given to cross-examine him. Therefore, we are of the opinion that inasmuch as rule 46A(3) of the Income-tax Rules. has not been complied with by the assessee, the order of the Tribunal by dispensing with the cross examination of the witnesses produced by the assessee cannot be sustained and therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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