Cross examination not provided go back to lower authorties

[brett_lee38]

In the case of M. Piara Chodi reported in 302 ITR 40(Mad). Hon'ble Justice P.D.Dinakaran has quashed the assessment proceedings in a writ on the ground that violation of natural justice has rendered the assessment a nullity. In this case the AO did not provide the assessee an opportunity to cross examine the third party. Assessee filed writ before the High Court single judge affirmed the order of the AO on the grouund of availability of alternative remedy. An LPA was filed against the order of the Single Judge the Division Bench quashed the order of the assessment. Matter reahced to the Supreme Court where it has been observed as under:-
ITEM NO.46 COURT NO.1 SECTION IIIA

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Civil) Nos.1736-1737/2009

(From the judgement and order dated 05/02/2008 in WA No.827/2007
and MP No.1/2007 of The HIGH COURT OF MADRAS)

INCOME TAX OFFICER Petitioner(s)

VERSUS

M.PIRAI CHOODI Respondent(s)

(With appln(s) for c/delay in filing SLP, c/delay in refiling SLP
prayer for interim relief and office report)

Date: 19/11/2010 These Petitions were called on for hearing today.

CORAM :
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE K.S. PANICKER RADHAKRISHNAN
HON'BLE MR. JUSTICE SWATANTER KUMAR


For Petitioner(s) Mr. R.P. Bhatt,Sr.Adv.
Ms. Bhakti Pasrija,Adv.
Ms. Rachana Joshi Issar,Adv.
Mr. B.V. Balaram Das,Adv.

For Respondent(s) Mr. K.V. Vijayakumar,Adv.
Mr. T. Ayyasamy,Adv.
Mr. T.R.B. Sivakumar,Adv.


UPON hearing counsel the Court made the following
O R D E R

Heard learned counsel on both sides.
Delay condoned.
Leave granted.
The civil appeals stand disposed of.



[ Alka Dudeja ] [ Madhu Saxena ]
A.R.-cum-P.S. Assistant Registrar

[Signed order is placed on the file]
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.9756-9757 OF 2010
(Arising out of S.L.P. (C) Nos.1736-1737 of 2009)


Income Tax Officer ...Appellant(s)


Versus


M. Pirai Choodi ...Respondent(s)



O R D E R


Heard learned counsel on both sides.
Leave granted.
In this case, the High Court has set aside the order
of assessment on the ground that no opportunity to cross-
examine was granted, as sought by the assessee. We are of
the view that the High Court should not have set aside the
entire Assessment Order. At the highest, the High Court
should have directed the Assessing Officer to grant an
opportunity to the assessee to cross-examine the concerned
witness. Be that as it may, we are of the view that, even on
this particular aspect, the assessee could have gone in
appeal to CIT (Appeals). The assessee has failed to avail
the statutory remedy. In the circumstances, we are of the
view that the High Court should not have quashed the
assessment proceedings vide impugned order.


....2/-
- 2 -


Consequently, the impugned order is set aside.
Liberty is granted to the assessee to move CIT (Appeals). It
is made clear that the assessee herein will move the CIT
(Appeals) within a period of six weeks from today.
Accordingly, these civil appeals stand disposed of.




.........................CJI.
[S.H. KAPADIA]



...........................J.
[K.S. PANICKER RADHAKRISHNAN]



...........................J.
[SWATANTER KUMAR]
New Delhi,
November 19, 2010.