| Question And Answer | |
|---|---|
| Subject: | Can the Assessing Officer from Raipur refuse to grant an opportunity of cross examination on the ground that the person who has given statement is resides at Mumbai ? |
| Category: | Income-Tax |
| Querist: | CA Shruti Agrawal |
| Answered by: | Research Team |
| Tags: | Assessment, cross examination, powers, Summons |
| Date: | June 2, 2021 |
Case of the assessee was reopened on the basis of third party information. The assesse asked opportunity to cross examination. But the same was rejected by the AO stating “Since the third party is a resident of Mumbai therefore the AO st Raipur is not empowered to issue summons to the above person so as to accord an opportunity of cross examination.”
Is there any case law in favour of above contention of AO. If yes, kindly quote the same. Also, any case law rejecting the above facts of the AO is welcomed.
In case the Assessing Officer relying on the statement of third party for making any addition and the Assessee has requested for cross examination it is the Duty of the Asseessing Officer to give an opportunity of cross examination . In Ayaaubkhan Noorkhan Pathan v. State of Maharashtra & Ors AIR 2013 SC 58/ (2013) 4 SCC 465 the Court held that right of cross examination is integral part of Natural justice. Section 131, of the Act empowered the Assessing Officer vested with powers which are vested in a Court under the Civil Procedure Code, 1908, when trying a suit in respect of the following matters namely;
(a) discovery and inspection;
(b) enforcing the attendance of any person,
(c) compelling the production of books of account and other documents, and also impounding books of account and documents;
(d) Issuing Commissions.
In Food Corporation of India v. Provident Fund Commissioner (1990) 1 SCC 68 (71) (SC) the Court held that it is the duty of the Assessing Officer to comply with the request of the assessee to produce a witness- Civil Procedure Code, 1908, O.XVI, R.10
In Jaganatha Sastry v. Surathambal Ammal (1923) 44 MLJ 202 (Mad.) (HC) /AIR 1923 Mad 321 the Court held that as per Rule 19 of Order XVI of the Civil Procedure Code, Summons can be issued only where witness resides within 500 Kms.( Beyond 200 miles) When the witness resides beyond prescribed limits, only commission can be issued. When application is made the Court has to issue the commission.
On the facts the Assessing Officer can issue commission to examine the witness. In International Planned Parenthood Federation (IPPF) v Madhu Bala Nath AIR 2016 DELHI 71 the Court held that examination can be done through video conference, the statement can be recorded and cross examination can be conducted .Also refer Sudha Ramalingam vs. Registrar General High Court of Judicature at Madras and Anr. AIR 2015 (NOC) 266 (Mad.)
It may be desirable for the assessee the consultant the tax consultant with more details which may help to render proper advice .