MR MAHAVEERCHAND vs THE INCOME TAX OFFICER

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF AUGUST, 2017 BEFORE THE HON’BLE Dr.JUSTICE VINEET KOTHARI WRIT PETITION No.30960 OF 2016 (T-IT ) BETWEEN MR. MAHAVEERCHAND S/O MR. VASTIMAL AGED ABOUT 46 YEARS, PRESENTLY RESIDING AT NO.187/1 R.V.COMPLEX, KUMBARPET MAIN ROAD, BANGALORE-560002.

...PETITIONER

(BY SRI. PRADEEP KUMAR J., ADVOCATE FOR SRI. HARISH V.S., ADVOCATE)

AND

THE INCOME TAX OFFICER

WARD 3(3), UNITY BUILDING ANNEXE

MISSION ROAD,

BANGALORE-560027.

THE INCOME TAX OFFICER

WARD-5 (2)(2), BMTC COMPLEX,

3RD FLOOR, ROOM NO.306

KORAMANGALA 6TH BLOCK

BANGALORE-560095.

...RESPONDENTS

(BY SRI. JEEVAN J. NEERALAGI, ADVOCATE)

Date of order : 28.08.2017 in WP No.30960/2016 . Mr. Mahaveerchand vs. The Income Tax Officer & Anr.,

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ASSESSMENT ORDER PASSED BY THE R-2 U/S 250 R/W SECTION 147 OF THE INCOME TAX ACT, 1961, DATED 29.03.2016 FOR THE ASSESSMENT YEAR 2007-08 I.E., ANNX-K AND CONSEQUENTIAL NOTICE OF DEMAND ISSUED BY THE R-2 U/S 156 OF THE IT ACT DATED 29.03.2016 FOR THE ASSESSMENT YEAR 2007-08 I.E., ANNX-L AND ETC.

THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

Mr. Pradeep Kumar., Adv. for Mr. Harish V.S., Adv. for Petitioner. Mr. Jeevan J. Neeralagi, Adv. for Respondents.

Though the present petition is directed against an assessment order passed by the respondent-Assessing Authority for the Assessment Year 2007-08, the same has been assailed in the present petition merely on the ground of non-compliance with the principles of natural justice, in as much as the statement of a third party-Mr.Mukesh Choksi which was relied on by the respondent-Assessing Authority, Income Tax Officer, Ward-5(2)(2), Bengaluru, was not even supplied to the petitioner and he was never

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allowed the opportunity to cross-examine that witness to bring forth the truth in his statement.

On the last occasion, the respondents’ counsel was directed to produce the original assessment records of the said Assessing Authority to verify the said contention raised on behalf of the petitioner. Accordingly, the learned counsel for the respondent-department has produced the said record and he has fairly submitted that though the authorized representative of the petitioner appeared before the Assessing Authority during the proceedings, but there is no specific mention in the order sheet entries of the Assessing Authority that the copy of the said statement of Mr. Mukesh Choksi was supplied to the petitioner or he was allowed an opportunity to cross-examine him.

In these circumstances, apparently there is an admission on the part of the Assessing Authority, that the petitioner or his authorized representative was not allowed the opportunity to cross-examine the revenue’s prime

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witness on whose statement the entire assessment order making additions in the declared income of the assessee is based. Consequently, the impugned assessment order deserves to be quashed on this sole ground.

This Court does not express any opinion on the merits of the case or otherwise and it is left free to the Assessing Authority to re-frame the assessment in accordance with law, after complying with the principles of natural justice in the aforesaid manner by supplying a copy of the statement of Mr.Mukesh Choksi to the petitioner forthwith and allow him an opportunity of cross-examining the said witness by the petitioner or his authorized representative.

With these observations, the petition is allowed. The impugned assessment order-Annexure-K dated 29.3.2016 is quashed and set aside. For fresh proceedings, the petitioner-assessee or his authorized representative are directed to appear before the Assessing

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authority in the first instance on 18.9.2017 and a period of six months is allowed to the said Assessing Authority to complete the fresh assessment for the Assessment Year 2007-08 in accordance with law.

There is no order as to costs.

Sd/- JUDGE

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MR MAHAVEERCHAND vs. THE INCOME TAX OFFICER