Commissioner Of Income-Tax, Jalandhar-I, Jalandhar v. Shri K.d.bali

Income-tax Appeal No.634 of 2005 *** IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH Income-tax Appeal No.634 of 2005Date of decision: 17.2.2011 Commissioner of Income-Tax, Jalandhar-I, Jalandhar ...Appellant Versus Shri K.D.Bali ...Respondent CORAM: HON'BLE MR.JUSTICE ADARSH KUMAR GOEL HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr. Vivek Sethi, Senior Standing Counsel for the appellant. Mr. Gagneshwar Walia, Advocate for Mr. K.D.Bali Mr. Avneesh Jhingan, Advocate for Mr. Tarsem Singh. Mr. M.S.Rakkar, Senior Advocate with Mr. A.S.Syal, Advocate for Mr. Suram Singh and Mr. Deep Chand. Mr. D.D.Sharma, Advocate for Directorate of Enforcement. **** ADARSH KUMAR GOEL, J ( Oral). 1.This order will dispose of ITAs No.634 of 2005, 341 of2009 and Civil Writ Petition No.9610 of 1994 as all the three mattersare inter-connected. 2.On 12.9.1993 cash amount of Rs.50 lacs was seized fromfiat car bearing registration No.PB-24-2300 at Garhshanker, DistrictHoshiarpur. Car was being driven by Deep Chand son of KhushiRam and also occupied by Suram Singh son of Jai Chand. The said *** Suram Singh and Deep Chand are the writ petitioners in Civil WritPetition No.9610 of 1994. Since the stand of the writ petitioners wasthat they were employees of K.D.Bali and money as well as carbelonged to K.D.Bali, Income Tax Officer, Hoshiarpur after issuingnecessary statutory notices passed order of assessment dated27.3.1997 for assessment year 1994-95 adding the said amount tothe income of K.D.Bali. The CIT(A) set aside addition which hasbeen upheld by the Income Tax Appellate Tribunal against whichITA No.634 of 2005 has been filed. 3.Stand of K.D.Bali was that as per affidavit dated25.7.1994 filed by Deep Chand and Suram Singh with theauthorities, the amount was delivered to them by K.D.Kaushal,property dealer of Ropar for being delivered to Tarsem Singh.Tarsem Singh was also one of the petitioners in the writ petitionoriginally filed and had laid claim to the amount on that basis.However, he later withdrew his claim and got his name deleted fromthe writ petition. The Income Tax Officer, Dasuya vide order ofassessment dated 21.3.2002 added the amount to the income ofTarsem Singh. Tarsem Singh took the plea that the amount did notbelong to him. He explained that K.D.Kaushal denied having sentthe money, his earlier statement was by mistake. The CIT(A) setaside addition in the hands of Tarsem Singh which order had beenupheld by the Tribunal against which ITA No.341 of 2009 had beenfiled by the revenue. 4.Claim in the writ petition of Suram Singh and Deep Chandis that since the amount was seized from them, the amount should *** be returned to them. They were tried for violation of provisions ofForeign Exchange Regulation Act, 1973 (FERA Act) but wereexonerated by the Appellate Authority i.e. Foreign ExchangeRegulation Appellate Board. 4.Claim in the writ petition of Suram Singh and Deep Chandis that since the amount was seized from them, the amount should *** be returned to them. They were tried for violation of provisions ofForeign Exchange Regulation Act, 1973 (FERA Act) but wereexonerated by the Appellate Authority i.e. Foreign ExchangeRegulation Appellate Board. 5.Civil Misc. No.7459 of 2006 has been filed by the TaxRecovery Officer, Hoshiarpur Range, Hoshiarpur to become party tothe writ petition to claim the money seized from the possession ofSuram Singh and Deep Chand for appropriation against income taxdemand against them. It is, inter-alia, stated that on receivinginformation from the SHO, Police Station, Garhshanker, DistrictHoshiapur that the amount of cash was seized from the writpetitioners survey proceedings were conducted under Section 133 &133A of the Income Tax Act, 1961 and after recording statements ofSuram Singh and Deep Chand, order of assessment dated28.3.2003 was passed against them under Sections 144/148 of theAct assessing Rs.25 lacs each as income of Suram Singh and DeepChand in respect of the amount seized treating the amount seized asincome of the said assesses. The assessment was made onprotective basis as assessment on substantive basis had alreadybeen made in the hand of K.D.Bali. Since the amount was with theChief Enforcement Officer, Jalandhar and the Manager of theAllahabad Bank, Civil Lines, Jalandhar, the Income Tax Departmentwas entitled to recover the said amount towards tax dues. TheDirectorate of Enforcement did not deliver the amount to the IncomeTax Department on the ground that writ petition was pending in thisCourt. The Department had attached the FDR with the Directorate of *** Enforcement. Deep Chand and Suram Singh had not challenged theassessment which had become final. In reply to the said application,the stand of the writ petitioners is that Deep Chand was merely adriver. Their statements that they were employees of K.D.Bali werenot voluntary. No order of assessment under Section 144 of the Actwas conveyed to them. As per assessment order annexed to theapplication as Annexure R/1, assessment had been made but theamount being with the Directorate of Enforcement assessment wasillegal. The assessment made against K.D.Bali had been set aside.Assessment in the hands of Tarsem Singh was also under challenge.Thus, the different assessment orders against different personscould not have been passed. 6.We have heard learned counsel for the revenue,assessee K.D.Bali and Tarsem Singh, Directorate of Enforcementand the writ petitioners Suram Singh and Deep Chand and perusedthe record. We are of the view that the money belongs to K.D.Baliwhich was initial version of Deep Chand and Suram Singh andsubstantive assessment in the hands of K.D.Bali and protectiveassessment in the hands of Deep Chand and Suram Singh are fullyjustified. CWP No.9610 of 1994 is liable to be dismissed while ITANo.634 of 2005 deserves to be allowed. ITA No.341 of 2009 has tobe dismissed as not pressed. The reasons follow:- 7.Stand of the revenue is that the substantive assessmentin the hands of K.D.Bali was rightly made and the CIT(A) and theTribunal erred in law in interfering with the same. Substantialquestion of law as to perversity of finding of the Tribunal was involved *** 7.Stand of the revenue is that the substantive assessmentin the hands of K.D.Bali was rightly made and the CIT(A) and theTribunal erred in law in interfering with the same. Substantialquestion of law as to perversity of finding of the Tribunal was involved *** and was required to be answered in favour of the revenue by settingaside the order of the CIT(A) and the Tribunal and restoring that ofthe Assessing Officer. If this stand is accepted, appeal filed by therevenue against Tarsem Singh was not required to be pressed. Itwas further stated the writ petitioners were not entitled to the moneyas in their hands protective assessment had already been made.Even if assessment in the hands of K.D.Bali was set aside, the writpetitioners would be liable to pay the money to meet the outstandingtax liability with penalty and interest which was in excess of theamount seized and the amount of interest earned thereon. In casethe amount does not belong to writ petitioners and belongs toK.D.Bali, the amount cannot be handed over to the writ petitioners. 8.Learned counsel for the writ petitioners only submittedthat since they were exonerated in proceedings alleged violation ofForeign Exchange Regulations Act and the amount was handed overby the police to Directorate of Enforcement, the amount having beenseized from them, the Directorate of Enforcement was liable toreturn amount to them under Section 41 of the FERA Act. Learnedcounsel for the writ petitioners when confronted with the order ofassessment did not dispute that no proceedings against the saidorders had been taken even though copies of order of assessmentwere annexed to the application filed in this Court in the year 2006 towhich reply was also filed by the petitioners. Learned counsel forthe Directorate of Enforcement stated that he had no objection ifdirection is issued to remit the money to Income Tax Department torecover the outstanding tax liability. *** 9.In view of above, Civil Writ Petition No.9610 of 1994 hasto be dismissed with a direction to the Directorate of Enforcement toremit the amount available with it to the Income Tax Departmentwithin three months from the date of receipt of a copy of this order. 10.We now deal with ITA No.634 of 2005 filed by thedepartment against K.D.Bali. If the said appeal is allowed, ITANo.341 of 2009 filed by the revenue against Tarsem Singh shallstand dismissed as not pressed as already noted. 11.Learned counsel for the revenue submitted that theassessee is partner of M/s Mahilpur Oil Store and declared totalincome of Rs.1,04,829/- for the assessment year in question. Onreceiving information from S.H.O., Police Station, Garhshanker on12.9.93 that a sum of Rs.50 lacs was seized from Deep Chand,driver and Suram Singh travelling in car No.PB-24-2300, statementsof Deep Chand and Suram Singh were recorded by Income TaxInspector. The said statements have been annexed as AnnexuresR/4 and R/5 to the application filed by the Income Tax Department inthe writ petition. The same have been referred to in the order ofassessment. Suram Singh stated that he was a Salesman at thepetrol pump of K.D.Bali and was getting salary of Rs.750/- permonth. Deep Chand stated that he was driver of father of K.D.Bali ata salary of Rs.1400/- per month. They went to Delhi to collect Rs.50lacs from J.P.Gupta on behalf of K.D.Bali. K.D.Bali was alsodetained under the provisions of Conservation of Foreign Exchangeand Prevention of Smuggling Activities Act, 1974 in pursuance oforder of detention dated 6.5.1994 on the basis of the said *** *** transaction. Though K.D.Bali in his statement recorded on 13.9.93denied any link with the amount, his stand was that Suram Singh washis employee earlier and had left in the year 1991. He knewJ.P.Gupta who was doing work of sale and purchase of cars in Delhi.He, however, denied owning the car in question and knowing theperson in whose name the car was registered though his addresswas mentioned for registration. The assessee was asked to explainwhy the amount be not added to his income to which his stand wasthat the amount did not belong to him. Deep Chand and SuramSingh had given an affidavit dated 25.7.1994 before the Enforcementauthorities that the amount belonged to Tarsem Singh and was givento them by K.D.Kaushal for being handed over to Tarsem Singh.Tarsem Singh had also claimed the said amount in the writ petitionbut later he resiled from the said version and got his name deletedfrom the writ petition. The assessing officer drew an inference thatamount belonged to K.D.Bali from the fact that Suram Singh andDeep Chand were his employees and address in the registrationcertificate of the car was of K.D.Bali who was benami owner of thecar. Relevant observations are :- “8.From the statements of S/Sh. Suram Singh, DeepChand, K.D.Bali and Tarsem Singh it reveals that themoney was to be delivered to Sh.K.D.Bali C/o MahilpurOil Store, Mahilpur. This is also confirmed from the factthat Sh. Suram Singh and Sh. Rajinder Singh wereemployees of Sh. Kapil Datt and Sh. Deep Chand wasemployee of Sh. Shiv Datt Bali father of Sh. Kapil Datt *** Bali. Thus the persons from whom the said amount ofRs.50 lakhs was seized are associates of Sh. Kapil DattBali and the fiat car the registration of which shows thatthe car was owned by Sh. K.D.Bali in Benami name or hisassociate. The statements recorded at the time of an justafter the incident reveals the absolute truth. Thereafter,the entire story is after thought, baseless and has no legsto stand. 9.On the basis of information on record and theanalysis of the foregoing facts, I am of the opinion that thesaid amount of Rs.50 lakhs seized from the associates ofSh. K.D.Bali is nothing but the income of the assessee.Sh. Kapil Datt Bali from undisclosed sources and is,therefore, added in his total income for the asstt. Year1994-95, for which he is also treated to have concealedas also furnished inaccurate particulars of his income.” 12.On appeal the CIT(A) set aside the order of assessmentand remanded the matter for fresh decision on the ground thatstatements of Suram Singh and Deep Chand could not have beentaken into account in absence of opportunity of cross examinationbeing given to the assessee. Relevant observations are:- “I have considered the arguments of the appellant. TheA.O. Has relied on the statement of Sh.Suram Singh and Sh. Deep Chand recorded by the Inspector on 13.3.93and no opportunity was allowed by him to the appellant tocross-examine these witnesses and whose statements he *** had relied on. The AO has also not made properinvestigation regarding the ownership of the car and hehas also not investigated as to why the money of Rs.50lacs was being sent by Sh. J.P.Gupta as per AO'sversion. There is nothing on record to show as to why theclaim of Sh. Tarsem Singh should be discarded. Thereare too many loose ends and proper enquiries arerequired to be made in this case. In view of this, it is fairto set aside this issue and restore, it to he file of the AOfor making proper examination and for passing a freshorder after making necessary enquiries and reasonableopportunity of being heard to the assessee. Accordingly,this issue is set aside and restored to the file of the AOfor re-examination and passing a fresh order on thisissue.” *** had relied on. The AO has also not made properinvestigation regarding the ownership of the car and hehas also not investigated as to why the money of Rs.50lacs was being sent by Sh. J.P.Gupta as per AO'sversion. There is nothing on record to show as to why theclaim of Sh. Tarsem Singh should be discarded. Thereare too many loose ends and proper enquiries arerequired to be made in this case. In view of this, it is fairto set aside this issue and restore, it to he file of the AOfor making proper examination and for passing a freshorder after making necessary enquiries and reasonableopportunity of being heard to the assessee. Accordingly,this issue is set aside and restored to the file of the AOfor re-examination and passing a fresh order on thisissue.” 13.After remand, the assessing officer issued a fresh noticeto the assessee and also issued summons to Suram Singh, DeepChand and J.P.Gupta. The assessing officer held that inspite ofrepeated efforts on account of non-cooperative attitude of theassessee, Suram Singh, Deep Chand and J.P.Gupta who were hisassociates and were interested in non appearance to benefit him didnot deliberately appear. Relevant observations are in paras 10 to 12and 17 of the order dated 31.12.1999. Accordingly, the assessingofficer analyzed the material on record and held that initial stand ofDeep Chand and Suram Singh coupled with stand of K.D.Bali andother circumstances showed that the money belonged to K.D.Bali *** and stand that the money belonged to Tarsem Singh and was givenat the instance of K.D.Kaushal was not acceptable. Reasons forhaving accepted version of Suram Singh and Deep Chand in theiroriginal statements were as under:- “i)These were recorded by the Inspector without anythreat/pressure/torture. What ever facts werestated by Sh. Suram Singh and Sh. Deep Chand,the same were recorded by the Inspector who didnot know either Sh. J.P.Gupta of Sh. K.D.Bali andall others, named by them in their statements.threat/pressure/torture. What ever facts werestated by Sh. Suram Singh and Sh. Deep Chand,the same were recorded by the Inspector who didnot know either Sh. J.P.Gupta of Sh. K.D.Bali andall others, named by them in their statements. Therefore, how the Inspector could have mentionthese names at his own accord.these names at his own accord. Moreover the statements on which the departmentis relying were not recorded by the police or theofficials of the Enforcement department but thesewere recorded by the Inspector of this office, withoutany kind of pressure. ii)The statement of both them were recordedseparately and the facts stated by them are inconformity and similar to each other. There is noany sign of contradiction.separately and the facts stated by them are inconformity and similar to each other. There is noany sign of contradiction. iii)Their statements are self explanatory and showingthe sequence of events.the sequence of events. iv)They clearly disclosed and admitted that theybrought the cash of Rs.50 lacks from Shri J.P.Guptawhich was to be delivered to Sh. K.D.Bali as per thebrought the cash of Rs.50 lacks from Shri J.P.Guptawhich was to be delivered to Sh. K.D.Bali as per the directions of Sh. Bali. v)Sh. Suram Singh and Rajinder Singh were theemployees of Sh. K.D.Bali whereas Sh. DeepChand was the driver of Sh. Shiv Datt Bali father ofShg. K.D.Bali. Therefore, their association with Sh.K.D.Bali stands established.employees of Sh. K.D.Bali whereas Sh. DeepChand was the driver of Sh. Shiv Datt Bali father ofShg. K.D.Bali. Therefore, their association with Sh.K.D.Bali stands established. iii)Their statements are self explanatory and showingthe sequence of events.the sequence of events. iv)They clearly disclosed and admitted that theybrought the cash of Rs.50 lacks from Shri J.P.Guptawhich was to be delivered to Sh. K.D.Bali as per thebrought the cash of Rs.50 lacks from Shri J.P.Guptawhich was to be delivered to Sh. K.D.Bali as per the directions of Sh. Bali. v)Sh. Suram Singh and Rajinder Singh were theemployees of Sh. K.D.Bali whereas Sh. DeepChand was the driver of Sh. Shiv Datt Bali father ofShg. K.D.Bali. Therefore, their association with Sh.K.D.Bali stands established.employees of Sh. K.D.Bali whereas Sh. DeepChand was the driver of Sh. Shiv Datt Bali father ofShg. K.D.Bali. Therefore, their association with Sh.K.D.Bali stands established. vi)As per their statements the money was broughtfrom Sh. J.P.Gupta on the instructions of Sh.K.D.Bali, because Sh. Bali had some links with Sh.J.P.Gupta as admitted by him in this statementdated 13.9.93. Sh. Bali admitted that Sh. J.P.Guptaused to make telephonic calls to him as and whenhe required his services. This shows that someactivities existed between him and Sh. Gupta.from Sh. J.P.Gupta on the instructions of Sh.K.D.Bali, because Sh. Bali had some links with Sh.J.P.Gupta as admitted by him in this statementdated 13.9.93. Sh. Bali admitted that Sh. J.P.Guptaused to make telephonic calls to him as and whenhe required his services. This shows that someactivities existed between him and Sh. Gupta. vii)The later version of Sh. K.D.Bali that he does notknow anything about Sh. J.P.Gupta and he has nolink with him cannot be believed to be correct inview of his statement dated 13.9.93.know anything about Sh. J.P.Gupta and he has nolink with him cannot be believed to be correct inview of his statement dated 13.9.93. viii)The claim over the cash of Rs.50 lacs put forth bySh. Tarsem Singh and the retraction of Sh. SuramSingh and Sh. Deep Chand is nothing but an afterthought and based on the false story. This has beenproved by Sh. K.D.Kaushal beyond doubt, thoughhis statement as mentioned above in details.Sh. Tarsem Singh and the retraction of Sh. SuramSingh and Sh. Deep Chand is nothing but an afterthought and based on the false story. This has beenproved by Sh. K.D.Kaushal beyond doubt, thoughhis statement as mentioned above in details. ix)Sh. K.D.Bali failed of offer any comments upon thestatement of Sh. K.D.Kaushal.statement of Sh. K.D.Kaushal. x)The retraction of Sh. Suram Singh and Sh. DeepChand has also been proved to be untrue by thefacts stated by Sh. K.,D. Kaushal in his statementsdt. 19.11.99 and 30.11.99. xi)Enquiries were also made regarding the ownershipof car bearing No.PB-24-2300 as per the directionsof the ld. CIT(A) a request was made to the SDMNGarshanker vide this office letter dt. 25.10.99 tofurnish the following information in respect of FiatCar No. PB-24-2300:-of car bearing No.PB-24-2300 as per the directionsof the ld. CIT(A) a request was made to the SDMNGarshanker vide this office letter dt. 25.10.99 tofurnish the following information in respect of FiatCar No. PB-24-2300:- a)Full particulars of car as per R.C. b)Name and address of the person in whosefavour it was originally registered and the dataof registration.favour it was originally registered and the dataof registration. c)Name and address of all persons, if any, inwhose favour the registration was transferredafterwards and the data of such transfer.whose favour the registration was transferredafterwards and the data of such transfer. d)The name of the person who was the owner ofthis car as on 12.9.93.this car as on 12.9.93. a)Full particulars of car as per R.C. b)Name and address of the person in whosefavour it was originally registered and the dataof registration.favour it was originally registered and the dataof registration. c)Name and address of all persons, if any, inwhose favour the registration was transferredafterwards and the data of such transfer.whose favour the registration was transferredafterwards and the data of such transfer. d)The name of the person who was the owner ofthis car as on 12.9.93.this car as on 12.9.93. The SDM cum Registration authority Garshanker vide hisoffice letter No.2608 dt. 15.11.99 informed that the carwas registered in the name of Sh. Baldev Sharma, ofPurani Sabji Mandi, Ropar C/o Kapil Datt Bali, resident ofMahilpur. It was purchased on 19.7.93 and registrationwas made on 23.7.93. It was not transferred in any othername uptil now, it stands in the name of the above said *** persons uptill now. The ownership of the car in the nameof a person whose address in the records of theRegistration Authority is given as c/o Sh. Kapil Datt Baliresident of Mahilpur established the relation of the carwith the assessee. Sh. Kapil Datt Bali and it also leads tothe conclusion that it was held by Sh. K.D.Bali in thebenami name of Baldev Sharma.” xxxxxxxxxx “21.All the facts narrated above reveal that themoney was brought by Sh. Suram Singh, Deep Chandand Rajinder Singh alias Gorkha on the instruction of Sh.K.D.Bali and they being the employees of Sh. Bali and hisfather, were the associates of the assessee and theassociate of the assessee. The retraction of Sh. SuramSingh and Sh. Deep Chand from their original statementsand the claim of Sh. Tarsem Singh are based on the afterthoughts which cannot be relied upon. Keeping in viewthe material and information placed on records and thefacts and circumstances of the case. I am of the opinionthat provision of Section 69A are applicable in this case.The amount of Rs.50 lacs seized from the associates ofSh. Kapil Datt Bali on 12.9.93 is therefore, treated as theincome of the assessee from undisclosed sources andadded to his total income for the A.Y. 1994-95. Theassessee is also treated to have concealed and furnishedinaccurate particulars of his income. *** 14.In the next round of litigation, the appeal of the assesseewas accepted by the CIT(A) again, inter-alia, on the ground that carwas taken on superdari by Sukhdev Singh and Suram Singh andDeep Chand being not available for cross examination, there was nomaterial to connect K.D.Bali with the amount. Relevant observationsare:- “As mentioned earlier the money was found in possessionof three persons who were in the car and who are nomore traceable. The car is registered in the name of Sh.Baldev Sharma but has been handed over to Sh.Sukhdev Singh by the Court and no efforts has beenmade by any authority to dispute this order of superdariwhich was based on the claim of Sh. Sukhdev Singh thatthe car belonged to him thus even the connection of carwith Sh. K.D.Bali has become remote. Only other thingsthat connects the amount of Rs.50 lacs to Sh. K.D.Baliare the statements of Sh. Suram Singh and Sh. DeepChand who are not available for cross-examination. Inthese circumstances, it is difficult to hold that Sh. K.D.Baliis the owner of Rs.50 lacs. In these circumstances, I amunable to hold that Rs.50 lacs represented income of theassessee u/s 69A of the I.T.Act and therefore the additionof Rs.50 lacs made by the A.O. Is deleted.” 15.The same view was taken by the Tribunal. 16.Learned counsel for the revenue submitted that mere factthat Sukhdev Singh got the car released on superdari could not be *** 15.The same view was taken by the Tribunal. 16.Learned counsel for the revenue submitted that mere factthat Sukhdev Singh got the car released on superdari could not be *** conclusive of K.D.Bali having no connection with the car. It is anacknowledged fact that address in the registration certificate of car isof K.D.Bali. This circumstance had been totally ignored by the CIT(A). The mention of address of K.D.Bali required explanation and theassessing officer rightly drew inference against K.D.Bali from the saidcircumstance. It was also admitted fact that K.D.Bali had himselfadmitted that Suram Singh was his employee earlier. The money didnot belong to Suram Singh from whom it was recovered nor TarsemSingh who was implicated in a later version. There was no motive forSuram Singh and Deep Chand to name K.D.Bali being owner of themoney. Their version was also probablised by the fact that K.D.Baliknew J.P.Gupta who is said to have given the money. No doubt thefact that Suram Singh and Deep Chand were not available for crossexamination could be a consideration in favour of K.D.Bali but theAssessing Officer has given detailed reasons for holding thatK.D.Bali himself was responsible for their non appearance. In thecircumstances, K.D.Bali could not take advantage of his own wrong.The circumstances taken together clearly proved that amountbelonged to K.D.Bali. The CIT(A) ignored and failed to discuss thematerial evidence namely address of K.D.Bali in the registrationcertificate , K.D. Bali being acquainted to J.P.Gupta and SuramSingh being his employee. Though K.D.Bali took the plea thatSuram Singh had left him it was for K.D.Bali to prove that SuramSingh has ceased to be his employee when admittedly at one time hewas his employee. His mere statement that Suram Singh had lefthim was a self serving denial to avoid his liability. Version of money *** being meant for Tarsem Singh was not found to be true. These factshaving not been taken into account by the CIT(A) as well as theTribunal, the view taken by the CIT(A) and the Tribunal beingperverse cannot be sustained. Conclusion drawn by the AssessingOfficer in the circumstances was fully justified. No doubt any quasijudicial authority has to follow principles of natural justice whichinclude opportunity to cross examine the witness whose statement isrelied upon but the principles of natural justice are not fixedprinciples. The same can vary depending upon the nature of enquiry.In the context of tax assessment it was observed inState of Kerala V. K.T.Shaduli Grocery Dealer(1977) 2 SCC 777:- “It is, therefore, not possible to say that in every case therule of audi alteram partem requires that a particularspecified procedure is to be followed. It may be that in agiven case the rule of audi alteram partem may import arequirement that witnesses whose statements are soughtto be relied upon by the authority holding the inquiryshould be permitted to be cross-examined by the partyaffected while in some other case it may not. Theprocedure required to be adopted for giving anopportunity to a person to be heard must necessarilydepend on the facts and circumstances of each case.”17.In the present case the persons from whom the amountwas recovered initially stated that the amount belonged to theassessee. They are not shown to be having any extraneous reason *** *** to give such a version. Thereafter though they gave statement thatthe amount belonged to Tarsem Singh but the said statement wasnot proved to be correct and the said statement was given after along time. The improved version could not be preferred to the originalversion. The first statement was also supported by othercircumstances of the car being registered at the address of theassessee, the assessee admitting that earlier Suram Singh was hisemployee and that he knew J.P.Gupta who was said to have sent theamount. These could not be ignored by the CIT(A) and the Tribunalfor setting aside of the assessment order on the ground that saidwitnesses were not produced for cross examination or that the carwas later taken by some third person on superdari. 18.In view of the above, we answer the question in favour ofthe revenue and hold that order of assessment against respondent-assessee K.D.Bali was justified and finding of the CIT(A) as well asthe Tribunal in setting aside thereof is perverse. 19.According ITA No.634 of 2005 is allowed whereas ITANo.341 of 2009 is dismissed as not pressed.20.A copy of this order be placed on the file of eachconnected case. (Adarsh Kumar Goel) Judge (Ajay Kumar Mittal) Judge