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TMI Blog2011 (2) TMI 1128X X X X Extracts X X X X X X X X Extracts X X X X ..... Held that:- It is open for the petitioner to furnish to the satisfaction of the Assessing Officer the circumstances under which the payment in the manner prescribed in Section 40A(3) was not practicable or would have caused genuine difficulty to the payee - With regard to the exemption to make the payment in the manner prescribed under Rule 6-DD, is not applicable to the petitioner herein as he is a trader - impugned assessment order is hereby quashed & revenue is directed to serve copies of the reports sought to be relied upon by the revenue against the assessee. Decided in favor of the assessee by way of remand. - W.P.(C) NO. 91 OF 2011 - - - Dated:- 2-2-2011 - V. GOPALA GOWDA, INDRAJIT MAHANTY, JJ. N. Venkataraman, Satyajit Mohanty, Md. Shafiqe, R.R. Swain and S. Patnaik for the Petitioner. A.K. Mohapatra for the Respondent. JUDGMENT V. Gopala Gowda, CJ In the present writ petition, the petitioner an Income Tax assessee seeks to question the correctness of the assessment order dated 6.12.2010 (Annexure-2) passed by the Asst. Commissioner of Income Tax, Circle-1(1), Bhubaneswar and consequential demand notice vide Annexure-2 series on the ground of viola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral population." 4. With reference to the stand taken by the opposite party nos.2 3, learned counsel for the petitioner placed reliance upon the decision of the Hon'ble Supreme Court in the case of Kothari Filaments v. Commissioner of Customs (Port) [2009] 2 SCC 192 and in particulars paragraphs-14, 15 17 thereof are quoted hereinbelow: "14. The statutory authorities under the Act exercise quasi-judicial function. By reason of the impugned order, the properties could be confiscated, redemption fine and personal fine could be imposed in the event an importer was found guilty of violation of the provisions of the Act. In the event a finding as regards violation of the provisions of the Act is arrived at, several steps resulting in civil or evil consequences may be taken. The principles of natural justice, therefore, were required to be complied with. 15. The Act does not prohibit application of the principles of natural justice. The Commissioner of Customs either could not have passed the order on the basis of the materials which were known only to them, copies whereof were not supplied or inspection thereto had not been given. He, thus, could not have adverted to the rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orementioned settled legal principles, there cannot be any doubt whatsoever that the principles of natural justice have been violated in this case." 5. He also placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Collector of Central Excise v. Steel Strips Ltd. [1995] 4 SCC 241 and in particulars paragraphs-7 8 thereof are quoted hereinbelow: "7. Failure to lay the requisite evidence cannot be made up by reference to authoritative publications unless the Excise authorities inform the assessee that they propose to rely upon the same before the adjudicating authority. It is then open to the assessee to establish that it does not obtain the article by the means referred to in the publication or, indeed, that the publication is not authoritative. In the decision of matters relating to excise, technical knowledge plays a part. It is for that reason that the Tribunal has a Technical Member. Technical evidence and authoritative publications must, therefore, be placed in the first instance before the adjudicating authority and the Tribunal. They have the requisite technical expertise to evaluate the same. Technical publications cannot usefully be cited for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Standing Counsel appearing on behalf of the Revenue submits that while it is the fact that the petitioner had not been provided with some of the materials relied upon by the Assessing Officer, yet in fact, the impugned order itself indicates that, a copy of the Field Visit Report of the Assessing Officer dated 14.11.2010 was communicated to the A.R. (Assessee's representative) on 01.12.2010. Apart from the same, learned counsel for the Revenue submits that the very reports relied upon and referred to by the Assessing Officer were available on the internet and, therefore, accessible to the general public including the petitioner, therefore, no violation of the principles of natural justice has occurred to justify any interference in the present case. Apart from the above, Mr. Mohapatra strenuously urged that the petitioner has the statutory right of appeal under Section 249 of the Income Tax Act, 1961 and therefore, adequate efficacious alternative remedy being available to the petitioner, the writ petition ought not to be entertained. 10. We have considered the averments made by the learned counsel for the respective parties. Perused the pleadings as well as the impugned o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative on 1.12.2010 when on the same day, the hearing of the assessment proceedings were concluded. 12. In any event, the stand of the revenue that other reports relied upon by the Assessing Officer were available in the internet, is no consequence, since, the assessee was entitled to prior notice of any report or material which the Assessment Officer, intended to rely upon and without such advance notice, by merely claiming that the said reports are available on the internet, does not and cannot satisfy the mandate of rules of natural justice. 13. In the light of the aforesaid conclusion arrived by us since the principles of natural justice have been clearly violated in the present case and the conclusion arrived at by the Assessment officer in itself Field Visit Report dated 14.11.2010 extracted at internal page-13 of the assessment order and in particular Paragraphs-9 and 10 thereof which are extracted page-13 of the assessment order is clearly indicative of possible bias, since the Assessment Officer himself had acted as a 'investigator' and had collected certain statements under the guise of being a doctorate student having research in fishery business in Chilika. 14. Con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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