By Advs.sri.harisankar v. Menonsmt.meera V.menon

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR WEDNESDAY, THE 25TH DAY OF NOVEMBER 2020 / 4TH AGRAHAYANA, 1942 WP(C).No.25978 OF 2020(V) PETITIONER/S: K.A.RAUFAGED 62 YEARS“SHELTER”, JAYANTHI NAGAR HOUSING COLONY, P.T. USHA ROAD, KOZHIKODE. BY ADVS.SRI.HARISANKAR V. MENONSMT.MEERA V.MENON RESPONDENT/S: OTHER PRESENT: SC: CHRISTOPHER ABRAHAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON25.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 JUDGMENT The petitioner has approached this Court aggrieved by Ext.P4 orderpassed by the 2[nd] respondent confirming a demand of tax under the Income TaxAct. In the writ petition, it is the case of the petitioner that the assessment wasinitially done for the assessment year 2007-2008 by making reference tocertain alleged lending activities of the petitioner. In an appeal that wascarried by the petitioner, the first appellate authority decided the issue infavour of the petitioner. It is stated that the revenue, however, carried thematter in further appeal before the appellate tribunal and the appellatetribunal remanded the matter to the assessing authority after finding that thebank accounts of one Mohan Raj ought to have been verified and, further, thatthe petitioner was entitled to cross examine the said Mohan Raj. In theconsequent order that was passed pursuant to the remand from the tribunal,the assessing authority found that the cross examination of Mohan Raj couldnot be permitted because of the non-availability of Mohan Raj for crossexamination, despite summons issued to him. The assessing authority, however,proceeded to rely on the evidence tendered by Mohan Raj without testing thesaid evidence through cross examination at the instance of the petitioner. Inmy view, if the evidence relied upon by the revenue for confirming a demandagainst the assessee is not tested, through permitting a cross examination bythe assessee, then the untested evidence cannot be relied upon against theassessee while confirming a demand against him. Inasmuch as the impugnedorders of the assessing authority rely on material that was not tested, I quashExt.P4 assessment order and direct the 2[nd] respondent to pass fresh orders inlieu thereof, after taking note of the observations in this judgment. The 2[nd] 3 respondent assessing authority shall pass fresh orders as directed afterhearing the petitioner, within a period of three months from the date of receiptof a copy of this judgment. The petitioner shall produce a copy of the writpetition together with a copy of this judgment before the 2[nd] respondent forfurther action. Sd/-A.K.JAYASANKARAN NAMBIAR JUDGE SJ 4 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2007-08. EXHIBIT P2 COPY OF APPELLATE ORDER ISSUED BY THE COMMISSIONER INCOME TAX (APPEALS),KOCHI. EXHIBIT P3 COPY OF COMMON ORDER ISSUED BY THE INCOME TAX APPELLATE, TRIBUNAL, KOCHI BENCH, KOCHI. EXHIBIT P4EXHIBIT P5 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT.COPY OF LETTER SUBMITTED BY THE PETITIONER.COPY OF LETTER SUBMITTED BY THE PETITIONER.COPY OF REPRESENTATION FILED BY THE PETITIONER'S COUNSEL. EXHIBIT P6EXHIBIT P7