9911796707
TMI Blog2024 (5) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the assessing officer at the stage of the proceeding under Section 147 of the said Act, the present writ petition cannot be entertained on such ground. Given the nature of enquiry, mere making of a statement in the response that the order u/s 148A (d) of the said Act was decided without affording the petitioner the right to cross-examine, without applying for issuance of summons for production of third party [Amit Kumar Agarwal] cannot vitiate the entire assessment order on such ground. Admittedly, there is an alternative remedy in the form of appeal, though the petitioner submits that the time to prefer an appeal by reasons of pendency of the writ petition has expired. Taking note of the fact that the writ petition was filed on 1st April 2024, the petitioner should be permitted to approach the appellate authority under the said Act. If the petitioner approaches the appellate authority within a period of 15 days from date and files appeal along with the server copy of this order with an application under Section 5 of the Limitation Act, 1963 explaining the delay, the appellate authority shall consider the same. - RAJA BASU CHOWDHURY, J. For the Petitioner : Mr. Subir Sanyal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goes to the very root of the matter. Although, the order under Section 147 of the said Act is an appealable order, yet by reasons of failure on the part of the authorities to afford the petitioner with an adequate opportunity to defend the proceeding by cross examining the third party from whom, evidence had been collected by the assessing officer, the remedy in the form of appeal has become otiose. As such there can be no bar for the petitioner to invoke the extra ordinary jurisdiction of this Hon ble Court, as the proceeding also stands vitiated on the ground of violation of principles of natural justice. 5. By placing reliance on an unreported judgment delivered by the Hon ble Division Bench of this Court presided over by the Hon ble the Chief Justice delivered in the case of Gee Bee Nirman Co. Private Limited v. Income Tax Officer, Ward-5(1), Kolkata Ors. in MAT 1667 of 2023, on 2nd January, 2024 , Mr. Sanyal submits that in the identical set of facts, the Hon ble Division bench of this Court taking note of the request made by the assessee for cross examination and the failure on the part of the authorities to permit such cross examination, has set aside the order of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overs the said period. He, however, could not demonstrate as to how the present assessment order covers the previous period, as the previous show-cause notice is not on record. The petitioner also could not produce the same. 10. It would appear from the order passed under Section 148A (d) of the said Act on 20th April 2022, that the authorities had categorically come to a finding that there is no scope under the provisions of the said Act to provide any opportunity to the petitioner to confront Amit Kumar Agarwal at that stage. Since, then a notice under Section 148 of the said Act was issued on 20th April 2022, and subsequently on 22nd June, 2023 notice under Section 143(2) of the said Act and on 25th August, 2023 notice under Section 142 (1) of the said Act were issued, which the petitioner had duly responded to and had also participated in the proceeding. Ultimately, the aforesaid culminated in an assessment order dated 7th March, 2024 under Section 147 read with Section 144B of the said Act. 11. I have considered the said order. From the aforesaid order or from the documents relied on by the petitioner, it does not appear that the petitioner had made any specific request before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Banka by affording a fresh opportunity to the assessee by way of personal hearing through video conferencing or in person and thereafter, consider the materials placed by the assessee and proceed to take a decision in accordance with law. Therefore, by not providing an opportunity to cross-examine Mukesh Banka, the authority is precluded from relying upon the statement recorded from the said person. 8. For the above reasons, we are inclined to interfere with the order impugned in the writ petition dated 24th May, 2023. 9. Accordingly, the appeal is allowed and the application (I.A. No. CAN 1 of 2023) is disposed of. The order passed in the writ petition is set aside and consequently, the assessment order dated 24th May, 2023 is set aside and the matter stands remanded back to the assessing officer for fresh consideration. The assessing officer is directed to issue fresh summons to Mukesh Banka and ensure his presence and permit the appellant to cross- examine the said person and thereafter, afford an opportunity to the assessee to submit additional reply and take a final decision in the matter in accordance with law. In the event, Mukesh Banka refuses to cooperate with the departme ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
