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 TUESDAY, THE 24TH DAY OF NOVEMBER 2020 / 3RD AGRAHAYANA, 1942WP(C).No.25868 OF 2020(G) PETITIONER/S: K.A.RAUFAGED 62 YEARSSHELTER, JAYANTHI NAGAR HOUSING COLONY, P.T.USHA ROAD, KOZHIKKODE. 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 ON24.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 JUDGMENT The petitioner has approached this Court aggrieved by Ext.P4 order passedby the 2[nd] respondent confirming a demand of tax under the Income Tax Act. In thewrit petition, it is the case of the petitioner that the assessment was initially donefor the assessment year 2008-2009 by making reference to certain alleged lendingactivities of the petitioner. In an appeal that was carried by the petitioner, the firstappellate authority decided the issue in favour of the petitioner. It is stated thatthe revenue, however, carried the matter in further appeal before the appellatetribunal and the appellate tribunal remanded the matter to the assessing authorityafter finding that the bank accounts of one Mohan Raj ought to have been verifiedand, further, that the petitioner was entitled to cross examine the said Mohan Raj.In the consequent order that was passed pursuant to the remand from thetribunal, the assessing authority found that the cross examination of Mohan Rajcould not 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 the saidevidence through cross examination at the instance of the petitioner. In my view, ifthe evidence relied upon by the revenue for confirming a demand against theassessee is not tested, through permitting a cross examination by the assessee,then the untested evidence cannot be relied upon against the assessee whileconfirming a demand against him. Inasmuch as the impugned orders of theassessing authority rely on material that was not tested, I quash Ext.P4assessment order and direct the 2[nd] respondent to pass fresh orders in lieu thereof,after taking note of the observations in this judgment. The 2[nd] respondentassessing authority shall pass fresh orders as directed after hearing the petitioner, 3 within a period of three months from the date of receipt of a copy of this judgment.The petitioner shall produce a copy of the writ petition together with a copy of thisjudgment before the 2[nd] respondent for further action. Sd/- A.K.JAYASANKARAN NAMBIARJUDGE 4 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1COPY OF ORDER ISSUED BY THE IST RESPONDENT FOR THE YEAR 2008-09 DATED 30.12.2011.FOR THE YEAR 2008-09 DATED 30.12.2011. EXHIBIT P2COPY OF APPELLATE ORDER ISSUED BY THE COMMISSIONER INCOME TAX (APPEALS), KOCHI DATED 16.6.2015.COMMISSIONER INCOME TAX (APPEALS), KOCHI DATED 16.6.2015. EXHIBIT P3COPY OF COMMON ORDER ISSUED BY THE INCOME TAX APPELLATE TRIBUNAL, KOCHI BENCH, KOCHI-23.4.2018.TAX APPELLATE TRIBUNAL, KOCHI BENCH, KOCHI-23.4.2018. EXHIBIT P4COPY OF ORDER ISSUED BY THE 2ND RESPONDENT DATED 30.12.2019.DATED 30.12.2019.EXHIBIT P5COPY OF LETTER SUBMITTED BY THE PETITIONER DATED 5.2.2020.DATED 5.2.2020. EXHIBIT P6COPY OF LETTER SUBMITTED BY THE PETITIONER DATED 25.5.2020.DATED 25.5.2020. EXHIBIT P7COPY OF REPRESENTATION FILED BY THE PETITIONER'S COUNSEL DATED 6.5.2020.PETITIONER'S COUNSEL DATED 6.5.2020.