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TAXAP/1849/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 1849 of
2009
=========================================================
COMMISSIONER
OF INCOME TAX-III - Appellant(s)
Versus
JAYSUKHBHAI
N KOTHADIA - 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
: 09/05/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE AKIL KURESHI)
1. The
Revenue is in appeal against the judgment of the Tribunal, dated
19.11.2008, raising following questions of law for our consideration:
“[A] “Whether
the Appellate Tribunal is right in law and on facts in confirming the
order passed by CIT(A) in reducing the addition from RS.12,23,900/-
to Rs.10,000/-”
[B] “Whether the
Appellate Tribunal is right in law and on facts in restrcting the
addition even after accepting in principle that the claim of the
assessee that purchases from M/s. Man Chem Enterprises and M/s. K.B.
Sales Corporation were not genuine and that the purchase amount was
inflated?” ”
2. From
a perusal of the orders on record, we find that the Tribunal has
proceeded on the basis that the statements of the witnesses, relying
upon which the Assessing Officer had drawn adverse inference, were
not offered for cross-examination. In view of this, the Tribunal was
pleased to confirm the order of the CIT Appeals.
3. Learned
Counsel for the Revenue, though, was not able to dispute the above
factual background, contended that in such a situation, the Tribunal
ought to have remanded the proceedings, before the Assessing Officer,
to proceed further after offering the witnesses for
cross-examination. The Tribunal, in his opinion, erred in shutting
down the entire proceedings, finally. Relying on the decision in
“TIN BOX COMPANY VS. COMMISSIONER OF INCOME
TAX”,
(2001) 249 ITR 216, learned Counsel contended that even
if the Tribunal was of the opinion that the Assessee did not get
appropriate opportunity to cross-examine the witnesses, correct
course to be applied was to remand the proceedings, instead of
rejecting the Revenue’s appeal.
4. From
the record, however, we find that the case is an old one. More than
14 years have been passed, since, the assessee filed his return of
income. It is extremely doubtful, whether the persons whose
statements were relied upon by the Assessing Officer, shall be, at
this distant point of time, available for cross-examination. More
significantly, this is not the case, where the Assessing Officer, on
his own, did not offer the witnesses for cross-examination, but, this
is the case, where the assessee categorically asked for
cross-examination, which was denied to him. In view of the above
facts, we are not inclined to examine the contentions of the learned
Counsel for the Revenue, leaving it open to be judged in the
appropriate proceedings, in future.
5. With
the above observations, this appeal stands DISMISSED.
(AKIL
KURESHI,J.)
(Ms.
SONIA GOKANI,J.)
Umesh/
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