9911796707
TMI Blog1983 (2) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the learned Commissioner (Appeals) and he has decided this issue against the assessee. The evidence that the assessee relied upon in support of its contention about the impugned assessment being barred by limitation was in the form of tape-recordings on a cassette alleged to be the conversation between one of the partners of the assessee-firm and the ITO who was making the impugned assessment. The grievance of the assessee before us, is that this evidence has not been given due weight and the learned Commissioner (Appeals), in para 7 of his impugned order, has made adverse observations against the assessee that 'the aforesaid original tape has not been played in my office and also no further communication has been received from the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port that what was recorded in the tape was relevant to the impugned assessment proceedings and was record of actual happening that had taken place. However, it was contended that the Commissioner (Appeals) had made a grievance that except this letter the assessee had not produced original tape for playing. It was contended that the question of limitation is inextricably linked with the evidence in the form of tape and in the context the issue of examination of the then ITO to ascertain the truth of the matter with regard to the evidence is paramount. Since there was no such examination of any party to the tape and since due weight was not given to the version recorded in the tape due to non-examination of the parties and non-playing of ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ab initio void. For this purpose the assessee, inter alia, heavily relies on what is alleged to have been recorded in the tape that had been produced before the learned Commissioner (Appeals). From a reading of the order of the Commissioner (Appeals), it appears that he has not examined the issue from all angles and has also not afforded reasonable opportunity to the assessee to produce the original tape for playing it before him and determining its evidentiary worth. But at the same time, the Commissioner (Appeals) has pointed out some defects in the transcript copies that were given to him. This has been done without affording an opportunity of either owning up or denying the statements, allegedly recorded in the tape, by all the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain Bros. v. Union of India [1970] 77 ITR 107 that "there is no presumption that officers or authorities who are entrusted with responsible duties under the taxation laws would not discharge them properly and in a bona fide manner". At the same time, as the same Court observed, "if in a particular case any mala fide action is taken that can always be challenged by an assessee in appropriate proceedings". 7. In view of what is stated above and in the interest of natural justice to both the sides, we set aside the order of the Commissioner (Appeals) with the directions that he should decide the appeal de novo after complying with the above-mentioned directions. Since we are setting aside his order, as above, we do not consider it necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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