Mat/1667/2023 Of Gee Bee Nirman Co Pvt Ltd v. Income Tax Officer Ward 5(1),Kol And Ors

Form No. J.(2)Item No.6 IN THE HIGH COURT OF JUDICATURE AT CALCUTTACIVIL APPELLATE JURISDICTIONAPPELLATE SIDE HEARD ON: 02.01.2024 DELIVERED ON: 02.01.2024 CORAM:THE HON’BLE CHIEF JUSTICE T.S. SIVAGNANAMAND THE HON’BLE MR. JUSTICE SUPRATIM BHATTACHARYA M.A.T. 1667 of 2023WithI.A. No. CAN 1 of 2023 Gee Bee Nirman Co Private Limited Vs.Income Tax Officer, Ward – 5(1), Kolkata & Ors. Appearance:- Mr. Avra MazumderMr. Kausheyo RoyMr. Suman BhowmickMr. Samrat Das ………for the appellant Mr. Aryak Dutt ………for the respondent/Department JUDGMENT (Judgment of the Court was delivered by T.S. SIVAGNANAM, C.J.) 1.This intra-Court appeal by the writ petitioner is directed against the orderdated 16[th] August, 2023 in W.P.A. No.18683 of 2023. In the said writpetition, the appellant had challenged the assessment order dated 24[th]May, 2023 under Section 147 read with Section 144B of the Income TaxAct, 1961 (for brevity, “the Act”) for the assessment year 2017-2018 on thedated 16[th] August, 2023 in W.P.A. No.18683 of 2023. In the said writpetition, the appellant had challenged the assessment order dated 24[th]May, 2023 under Section 147 read with Section 144B of the Income TaxAct, 1961 (for brevity, “the Act”) for the assessment year 2017-2018 on the ground that the appellant had not been granted an opportunity to cross-examine one Mukesh Banka, whose statement was recorded under Section131 of the Act. 2.The learned Single Bench after noting the observations made in paragraph2 of the order passed by the assessing officer, has dismissed the writpetition. Aggrieved by the same, the appellant has filed the present appeal.3.We have elaborately heard the learned advocates for the parties. 4. Admittedly, the request made by the assessee for cross-examination ofMukesh Banka was accepted by the department and summons was issuedto the said person to appear online on 9[th] May, 2023 and the hearing wasfixed at 12:15 p.m. on the same date. It is a case of the assessee that thelink for attending the hearing through video conferencing was shared withthe assessee much after the time, which was fixed. Consequently, theassessee could not avail the opportunity. This was brought to the notice ofthe assessing officer by way of a representation. The assessing officeraccepted the same and fixed a fresh date for cross-examination of the saidMukesh Banka and the link was shared. On the date so fixed, theassessee appeared online, however, Mukesh Banka did not turn up citingcertain health reasons. 5. Once again, the asssessee had made a request that Mukesh Banka beproduced for cross-examination and thereafter, the assessee should begranted of an opportunity to put forth their case. However, the assessingofficer declined to consider the said request on the ground that theassessment proceedings are getting time barred on 31[st] May, 2023 andproceeded to state that the statement of Mukesh Banka was recorded on 6. 7. 8. oath on 30[th] May, 2018 and 19[th] July, 2018 and they are very much clear inrespect of modus operandi to provide accommodation entries. Thus, the assessing officer proceeded on the basis of the statementsrecorded by Mukesh Banka without affording an opportunity to cross-examine the said person by the assessee. It would have been a differentcase had the department rejected the request for cross-examination at thefirst instance and the matter would have been dealt with in a differentmanner by the assessee. However, the request made by the assessee forcross-examination was considered and granted and merely becauseMukesh Banka refused to co-operate with the department by notresponding to the summons cannot prejudice the assessee andsimultaneously, the assessing officer cannot proceed on the basis of thestatement recorded from Mukesh Banka, which remains uncontroverted. Thus, the assessing officer proceeded on the basis of the statementsrecorded by Mukesh Banka without affording an opportunity to cross-examine the said person by the assessee. It would have been a differentcase had the department rejected the request for cross-examination at thefirst instance and the matter would have been dealt with in a differentmanner by the assessee. However, the request made by the assessee forcross-examination was considered and granted and merely becauseMukesh Banka refused to co-operate with the department by notresponding to the summons cannot prejudice the assessee andsimultaneously, the assessing officer cannot proceed on the basis of thestatement recorded from Mukesh Banka, which remains uncontroverted. There are two ways by which the department can resolve the issue. Firstly,by issuing fresh summons to Mukesh Banka and fixing a fresh date forcross-examination or the second methodology that can be adopted is toignore the statements recorded by Mukesh Banka by affording a freshopportunity to the assessee by way of personal hearing through videoconferencing or in person and thereafter, consider the materials placed bythe assessee and proceed to take a decision in accordance with law.Therefore, by not providing an opportunity to cross-examine MukeshBanka, the authority is precluded from relying upon the statementrecorded from the said person. For the above reasons, we are inclined to interfere with the order impugnedin the writ petition dated 24[th] May, 2023. 9.Accordingly, the appeal is allowed and the application (I.A. No. CAN 1 of2023) is disposed of. The order passed in the writ petition is set aside andconsequently, the assessment order dated 24[th] May, 2023 is set aside andthe matter stands remanded back to the assessing officer for freshconsideration. The assessing officer is directed to issue fresh summons toMukesh Banka and ensure his presence and permit the appellant to cross-examine the said person and thereafter, afford an opportunity to theassessee to submit additional reply and take a final decision in the matterin accordance with law. In the event, Mukesh Banka refuses to cooperatewith the department by not responding to the summons, then thedepartment cannot rely upon the statements recorded from Mukesh Bankaand a fresh decision be taken by the assessing officer after affording anopportunity of fresh hearing to the appellant and take a decision based onthe materials available on record except the statements of Mukesh Banka. 10.No costs. 11.Urgent photostat certified copy of this order, if applied for, be furnished tothe parties expeditiously upon compliance of all legal formalities. the parties expeditiously upon compliance of all legal formalities. (T.S. SIVAGNANAM) CHIEF JUSTICEI agree. (SUPRATIM BHATTACHARYA, J.) Pallab/KS AR(Ct.)