Supreme Court : Order of assessment passed without granting an opportunity to assessee to cross-examine, should not have been set aside by High Court; at most, High Court should have directed Assessing Officer to grant an opportunity to assessee to cross-examine concerned witness

Supreme Court Of India

ITO vs. M. Pirai Choodi

Assessment Year 2004-05

Section : 143

S.H. Kapadia, C.J.I.

K.S. Panicker Radhakrishnan And Swatanter Kumar, JJ.

Civil Appeal Nos. 9756 And 9757 Of 2010

November  19, 2010

ORDER

1. Heard learned counsel on both sides.

2. Leave granted.

3. 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 the Commissioner of Income-tax (Appeals). The assessee has failed to avail of the statutory remedy. In the circumstances, we are of the view that the High Court should not have quashed the assessment proceedings vide the impugned order.

4. Consequently, the impugned order is set aside.

5. Liberty is granted to the assessee to move the Commissioner of Income-tax (Appeals). It is made clear that the assessee herein will move the Commissioner of Income-tax (Appeals) within a period of six weeks from today.

6. Accordingly, these civil appeals stand disposed of.

[Citation : 334 ITR 262]

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