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TAXAP/1584/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 1584 of 2010
=========================================================
COMMISSIONER
OF INCOME TAX-III - Appellant(s)
Versus
B
C BHANDARI, DECEASED BY L H SHAIELSH BHANDARI - Opponent(s)
=========================================================
Appearance
:
MRS
MAUNA M BHATT for
Appellant(s) : 1,
None for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI
Date
: 16/11/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE AKIL KURESHI)
Revenue
is in appeal against the judgment of the Tribunal dated 29.1.2010.
Heard
learned Counsel Mr.M.R.Bhatt for the appellant and Mr.Soparkar for
the respondent appearing on Caveat for final disposal of the appeal.
Learned
counsel jointly submitted that under identical circumstances, this
Court had remanded the revenue’s appeal before the Tribunal for
fresh consideration making following observations:
“Having
thus heard the learned counsel for the parties and having perused the
record, we find that previously even after best efforts, witness
Ashok Gupta could not be produced for cross-examination at the hands
of the assessee. Simultaneously, Revenue is also of the opinion that
there is sufficient independent evidence on record to hold that the
transaction was bogus even after discarding the evidence of Shri
Ashok Gupta.
In
that view of the matter, we find that the Tribunal’s desire to remand
the proceedings for fresh attempt to offer Shri Ashok Gupta for
cross-examination was not justified. Further, we find that the onus
to produce Shri Ashok Gupta, whose statements were relied upon by
the Department and whose cross-examination was desired by the
assessee is cast on the assessee. It would be a piquant
situation if the assessee failed to produce the said witness before
the Assessing Officer. The question may then arise whether on
account of the assessee’s failure to produce Shri Ashok Gupta for
cross-examination and that therefore, no cross-examination could be
carried out, what would be the effect of the Tribunal’s order. To
avoid all these complications, particularly in view of the Revenue’s
firm stand that quite independently of the evidence of Mr.Ashok
Gupta, there was sufficient independent evidence to sustain the
findings, we are inclined to set aside the order of the Tribunal and
we accordingly set aside the same. Proceedings are remanded before
the Tribunal. The Tribunal is requested to rehear the appeals. It is
clarified that evidence of Shri Ashok Gupta shall, however, be
discarded while considering and deciding the assessee’s appeal. We
have not expressed any opinion on the remaining contentions of the
rival parties. Appeal stands disposed of accordingly”.
Issue
is being common without recording separate reasons, this appeal is
partly allowed. Tribunal’s order is set aside. Proceedings are
remanded for fresh consideration bearing in mind the observations
made in order dated 29.8.2011 passed in Tax Appeal No.1218 of 2010
which are reproduced herein above.
Tax
Appeal is disposed of accordingly.
(AKIL
KURESHI, J.)
(Ms.SONIA
GOKANI, J.)
(ashish)
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