P.ramamohan Rao v. The Deputy Commissioner Of Income Taxcentral Circle 2 (4)Investigation Wingroom

P.Ramamohan Rao Versus ...Petitioner The Deputy Commissioner of Income TaxCentral Circle 2 (4)Investigation WingRoom No.111, 1st Floor,New No.46, M.G.Road,Chennai - 600 034. This Writ Petition is filed under Section 226 of theConstitution of India praying for an issuance of a Writ ofCertiorarified Mandamus calling for the records of therespondent herein pertaining to the Order bearingNo.DCIT/CC 2 (4)/2018-19 dated 20.12.2018 and quash thesame and consequentially direct the respondent to permitthe petitioner to cross examine the witnesses relied uponby the respondent as set forth in the petitioner'sapplication dated 11.12.2018. The above Writ Petition has been filed by thepetitioner seeking issue of a Writ of CertiorarifiedMandamus calling for the records of the respondentpertaining to the order bearing No.DCIT/CC 2 (4)/2018-19dated 20.12.2018 and quash the same and consequentiallydirect the respondent to permit the petitioner to crossexamine the witnesses relied upon by the respondent as setforth in the petitioner's Application dated 11.12.2018. 2.1. It is the case of the petitioner that he was aChief Secretary in the Government of Tamil Nadu anddischarging his duty with full sense and responsibility. https://hcservices.ecourts.gov.in/hcservices/ It is his further case that he has been made a scape goatby Politicians and the case has been foisted on him. Hewould further contend that a raid was conducted in hispremises and he has given a statement with respect to hisson's involvement in his business. 2.2. On 10.12.2016, the Officers of the Income TaxDepartment had come to his residence and a search andseizure operation under Section 132 of Income Tax Act, wasbeing undertaken with respect to his son's affairs. Hewould further contend that he had given full access to hisresidence and to all the papers. The raid had gone on fora few days and he did not interfere or intervene in any ofthe activities of the Tax Officers though, according tohim, the raid was clearly illegal. 2.3. After the search and seizure operation, he cameto know that he had been implicated without any authorityof law and on 31.07.2018, the Income Tax Department hadissued him with a Notice under Section 153A of the IncomeTax Act (hereinafter referred to as "Act"), purporting todo assessment on him with respect to the search and seizureoperation conducted against his son. The aforesaid Noticewas later withdrawn by the respondent as they realisedtheir own blunder and on the same date i.e., 24.09.2018,the Department had issued him yet another Notice underSection 153C of the Act. 2.4. On going through the file, the petitioner hadlearnt that the entire proceedings under Section 153C ofthe Act was being undertaken on the basis of the statementmade by one K.Srinivasalu, who was linked with thebusiness concern under the name and style of SRS Mining.The petitioner would further contend that he was aware thatthe said K.Srinivasalu had retracted his statement and hewas doubly sure that the entire proceedings of theDepartment were baseless. 2.5. The petitioner made an Application to therespondent on 11.12.2018 requesting permission to crossexamine the said K.Srinivasalu, whose statement has beenrelied upon by the Department. By an order dated12.12.2018, the respondent had also granted permission tothe petitioner to cross examine the said K.Srinivasalu.The cross examination was fixed on 19.12.2018 & 20.12.2018.On both those days, it was the Officers, who had examinedK.Srinivasalu and the petitioner would submit that he waspresent at the time of the examination. The saidK.Srinivasalu had retracted his earlier statement and whenthe petitioner was waiting to cross examine the witness at06:00 p.m on 20.12.2018, the respondent Officer has passed the impugned order which reads as follows: 2.5. The petitioner made an Application to therespondent on 11.12.2018 requesting permission to crossexamine the said K.Srinivasalu, whose statement has beenrelied upon by the Department. By an order dated12.12.2018, the respondent had also granted permission tothe petitioner to cross examine the said K.Srinivasalu.The cross examination was fixed on 19.12.2018 & 20.12.2018.On both those days, it was the Officers, who had examinedK.Srinivasalu and the petitioner would submit that he waspresent at the time of the examination. The saidK.Srinivasalu had retracted his earlier statement and whenthe petitioner was waiting to cross examine the witness at06:00 p.m on 20.12.2018, the respondent Officer has passed the impugned order which reads as follows: "While answering to the Q.No.3 of hisdeposition he has stated that, "I confirm thatthese books are maintained in this office by me.The notings in these books are written by me andI confirm that it is my handwriting. As per theinstructions of partners Shri.S.Ramachandran,Shri.J.Sekar and Shri.K.Rathinam only. I ammaintaining these notings. The entries found areincidental expenses paid to various persons".However,duringtheexamination-in-chiefconducted on 19.12.2018 & 20.12.2018 in person,the witness became hostile. Therefore, thecross-examination requested by Shri Rama MohanaRao is not considered." 3. Ms.Pushya Sitaraman, learned Senior Counselappearing on behalf of the petitioner's counsel wouldcontend that the failure on the part of the respondent topermit the petitioner to cross examine the saidK.Srinivasalu is fatal to his case and that he should havebeen given an opportunity to cross examine the witness,particularly, when the respondent is relying upon theevidence of said K.Srinivasalu. She had also contended thatthe prosecution would rely upon the earlier evidence of thewitness and the petitioner would be put to a disadvantage. 4. The fact that the witness had turned hostile wouldonly stand to the benefit of the petitioner as the entireevidence of the witness could be considered and this Courtis unable to understand as to how it would be adverse tothat of the petitioner. Even if the respondent was to relyon that part of the evidence of K.Srinivasalu which is intheir favour they have to let in other reliable evidence tocorroborate the same. During the course of the arguments,it was informed by the learned Senior Counsel that copiesof the evidence had not been provided to the petitioner andthis Court directs the respondents to give copies of theevidence to the petitioner. 5. I do not find any infirmity in the order of therespondent in refusing the request for cross examinationsince the witness had turned hostile to the respondent'scontentions. Needless to state that in the light of theamendment to Section 154 by insertion of Sub Section (2) byAct 2 of 2006 w.e.f. 16.04.2006, it is well open to thepetitioner to work out his right in accordance with law onreceipt of the evidence directed to be given. 6. In the result, this Writ Petition shall standdismissed. No costs. Consequently, connectedMiscellaneous Petition is closed. //True Copy// Sd/- Assistant Registrar(CS) Sub Assistant Registrar sms/mrrTo The Deputy Commissioner of Income TaxCentral Circle 2 (4)Investigation WingRoom No.111, 1st Floor,New No.46, M.G.Road,Chennai - 600 034.+1cc to Mr.Srinath Sridevan , Advocate SR.No. 90090+1cc to Mr. A.P.Srinivas,, Advocate SR.No. 90087W.P.No.34626 of 2018A.SK(29/01/2019) https://hcservices.ecourts.gov.in/hcservices/