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TMI Blog2023 (4) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... th. Failure to provide such an opportunity amounted to violation of the principles of natural justice which vitiated the order of the Tribunal. As following the decisions of the Supreme Court in M/s. Kishinchand Chellaram [ 1980 (9) TMI 3 - SUPREME COURT] and Andaman Timber Industries [ 2015 (10) TMI 442 - SUPREME COURT] we are of the considered opinion that findings rendered by the revenue authorities stood vitiated for failure on their part to afford an opportunity to the appellant to cross-examine the transporters and for disbelieving the evidence adduced such as TDS certificates. Decided in favour of the assessee. - I.T.T.A. No. 205 of 2006 - - - Dated:- 1-2-2023 - THE HON BLE THE CHIEF JUSTICE UJJAL BHUYAN AND THE HON BLE SRI JUSTICE N. TUKARAMJI For the Appellant : Ms. I. Maamu Vani For the Respondent : Mr. J. V. Prasad JUDGMENT ( Per the Hon ble the Chief Justice Ujjal Bhuyan ) Heard Ms. I.Maamu Vani, learned counsel for the appellant and Mr. J.V.Prasad, learned Standing Counsel, Income Tax Department for the respondent. 2. This appeal has been preferred by the assessee under Section 260A of the Income Tax Act, 1961 (briefly referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Learned counsel for the appellant has painstakingly taken us to the order of assessment, order passed by the first appellate authority as well as order of the Tribunal. She submits that revenue had relied upon sworn statement of Mr. Kuldip Vasta, proprietor of M/s. Trans India Express dated 16.02.2004, one of the creditors of the appellant. In the said statement, Mr. Kuldip Vasta denied that M/s. Trans India Express had received Rs.7,83,986.00 from the appellant. Not only that, he also denied giving any such confirmation letter. Copy of the above signed statement was not furnished to the appellant. That apart, request of the appellant to cross-examine the creditors was not granted by the revenue at any stage. Had such an opportunity been granted, the truthfulness or otherwise of the statements of the creditors would have been established. 9. In support of her contention, learned counsel for the appellant has relied upon a decision of the Supreme Court in M/s. Kishinchand Chellaram v. Commissioner of Income Tax, Bombay City II, Bombay 1980 (Supp) Supreme Court Cases 660 and contends therefrom that non-furnishing of documents relied upon by the revenue and not offering an opp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort of the above claim, appellant had furnished confirmation letters from the four transporters. In order to verify correctness of the confirmation letters, assessing officer issued notice to the transporters under Section 133(6) of the Act. All the four transporters (creditors) denied that the above outstanding credits were receivable by them from the appellant. In addition to that, Mr. Kuldip Vasta, proprietor of M/s. Trans India Express recorded a statement under Section 131(1)(b) of the Act on 16.02.2004. In the said statement, he denied that appellant was required to pay M/s. Trans India Express a sum of Rs.7,83,970.00. He also denied issuing any confirmation letter as produced by the appellant. According to the assessing officer, when this aspect was brought to the notice of the appellant vide letters dated 20.02.2004 and 21.01.2004, appellant reiterated its stand that it had availed transport services from the above transporters for which the aforesaid amounts outstanding as on 31.03.2001 were liable to be paid. In addition, it had produced some vouchers and Tax Deduction at Source (TDS) certificates made in respect of M/s. Trans India Express. Assessing officer noticed cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessing officer but he went on to add that mere making of TDS would not make a transaction genuine; that apart, appellant did not file any TDS return. Question here is not of the appellant taking the benefit of making deposit of TDS by filing TDS return. The question here is that TDS certificate was filed to prima facie show credit of the appellant towards the four transporters. 18. It is true that in appeal before the first appellate authority, appellant did not raise the ground relating to cross-examination and thus violation of the principles of natural justice. However, the first appellate authority extracted the statement made by Mr. Kuldip Vasta under Section 131 of the Act. But the first appellate authority did not furnish the same to the appellant to contest the stand taken by Mr. Kuldip Vasta. On the contrary, first appellate authority held that in a transaction involving two persons, genuineness of the same has to be concluded only after both the persons involved in the transaction confirm having entered into the same. If one denies, obviously the other person has to prove that the denial is out of any special reason including a reason of hostility. Further observi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax officer. Supreme Court held that such a letter could not have been relied upon by the Tribunal as a material piece of evidence because this letter was not disclosed to the assessee by the income tax officer. Like the present case, even though the first appellate authority had reproduced an extract of the letter in his order, he did not care to produce it before the assessee or give a copy of it to the assessee. On the above basis, Supreme Court held that even assuming that this letter was in fact addressed by the banker to the income tax officer, no reliance could be placed upon it since it was not shown to the assessee and no opportunity to cross-examine the banker was given to the assessee. Before the income tax authorities can rely upon such a document, it is their bounden duty to produce it before the assessee to enable the assessee to controvert the statements contained in it by asking for an opportunity to cross-examine the banker with reference to the statements made in the letter. In the facts and circumstances of that case, Supreme Court while allowing the appeal had set aside the judgment of the High Court as well as that of the Tribunal. 22. Again in Andaman Timb ..... X X X X Extracts X X X X X X X X Extracts X X X X
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