IN HIGH COURT OF JUDICATURE AT MADRAS DATED 27.01.2015 CORAM HONOURABLE MR.JUSTICE S.VAIDYANATHAN W.P.Nos.1776 to 1791 of 2015 and M.P.Nos.1 and 1 of 2015 WP.No.1776 of 2015 NARESH PRASAD AGARWAL Proprietor- SHIV SAHAI & SONS 1, Narasimha Dasari Lani 60-61, N.S.C.Bose Road Chennai -600 079 Petitioner Vs. Commissioner of Income Tax (Appeals) (C)-II Office of Income Tax Department, 108, M.G.Road, Nungambakkam, Chennai 600 034 .Respondent Prayer:- Writ Petitions filed under Article 226 of Constitution of India to issue Writ of mandamus directing respondent to provide opportunity in Appeal dated 09.4.2014 filed by petitioner to cross examine concerned MMTC Officials pertaining to income assessed for Assessment year 2006-2007 on basis of so called payments said to have been made by MMTC. For Petitioner :Mr.Yashod Vardhan Senior Counsel for M/s. Mcgan Law Firm For Respondent :Mr.S.Rajasekar Jostel 2 COMMON ORDER Writ Petition Nos.1776 to 1782 of 2015 have been filed for mandamus directing respondent to provide opportunity in Appeal dated 09.4.2014 filed by petitioner to cross-examine concerned MMTC Officials pertaining to income assessed for Assessment years 2006-2007 to 2012 -2013 on basis of so called payments said to have been made by MMTC. 2. Writ Petition Nos.1783 to 1791 of 2015 have been filed for mandamus directing respondent to consider representation dated 24.6.2014 and decide preliminary issue in appeal dated 09.4.2014 filed by petitioner with regard to Assessment Year 2006 2007 as to whether block assessment can be made based on materials and documents which did not form part of search conducted on 06.01.2012 and 2.3.2012 under Section 132 of Income Tax Act, 1961. 3. petitioner has preferred appeal before Commissioner of Income Tax, Chennai, wherein he raised several pleas including objections for not giving opportunity to him to examine MMTC officials and its Auditors. According to petitioner, he made request before appellate authority on 24.6.2014 and also on 21.7.2014 seeking for cross examination of concerned MMTC officials. But assessing officer has rejected said request. According to petitioner, alleged payment 3 made by MMTC have to be completely eschewed. 4. learned counsel for petitioner drew attention of this Court to order dated 30.6.2014 passed by this Court in Application No.2830 of 2013 in C.S.No.249 of 2013, wherein this Court has observed as follows: Therefore, in view of ratio decidendi laid down by Hon`ble Supreme Court, point No.1 is answered in favour of applications by holding that no specific allegations, much less, any allegations of fraud were made against applications, and having regard to fact that third defendant was officer of respondent/ plaintiff and he rudged accounts of respondent/plaintiff, and thereby, caused wrongful gains to applicants and respondent/ plaintiff was also able to deduct some amount quantified loss suffered by them and also having regard to Clause II of MOU, dispute has to be referred to arbitration and it need not be tried by Civil Court . 5. learned counsel for petitioner also drew attention of this Court to order dated 28.10.2014 passed by Division Bench of this Court in O.S.A.No.244 of 2014 and relevant paragraph is extracted below:- 21. On perusal of plaint, we find no infirmity in findings of learned single Judge. 4 plaint is not to be read like statute. plaint has to be read as whole. allegation is really against their employee and in accounting dispute inter se parties, and by impleading third defendant, appellant cannot be permitted to defeat arbitration clause. At request of learned Senior Counsel for appellant, we do clarify that naturally what has been observed by learned Single Judge is for purposes of deciding application under Section 8 of said Act and would not, in any case, affect merits of controversy before Arbitral Tribunal. 6. learned counsel has also placed reliance on judgment of this Court in THILAGARATHINAM MATCH WORKS V. COMMERCIAL OF CENTRAL EXCISE, TIRUNELVELI (reported in 2013 (29) E.LT. 195 (MAD), wherein this Court permitted parties to cross examine persons concerned. relevant paragraph is extracted as follows:- fact that annexure to show cause notices contained list of statements recorded from certain persons and officers and also Energy Auditor's Report, in support of show cause notices, is not denied. Once certain reports or statements are relied upon in enquiry, it is fundamental that author of 5 report and persons from whom, such statements are allegedly recorded should be made available for cross examination. It is part of principle of natural justice . 7. Per contra, learned counsel appearing for respondent submitted that petitioner cannot presume that appellate authority will reject request at threshold. It is stated by learned counsel that matter will be considered along with appeal after giving opportunity to petitioner. learned counsel for respondent submitted that this Court, by order dated 28.5.2014 in WP.Nos.14082 to 14088 of 2014, directed authority to pass orders within period of four weeks from date of receipt of copy of that order, when petitioner approached this Court for direction to respondent to dispose of appeal dated 09.4.2014 against order of assessment passed by Deputy Commissioner of Income Tax, Central Circle III (1) for assessment year 2006- 2007 to 2011 -2012. learned counsel for respondent further submitted that though more than four months have been lapsed, petitioner, even though participated in appeal, is not co-operating with respondent for disposal of matter. 8. It is submission of learned counsel for respondent that it is for appellate authority to decide matter on merits and in 6 accordance with law and petitioner has no locus standi to approach this Court by way of these writ petitions for direction to cross examine officials. It is also submitted that officials of MMTC have produced only documents available with them and no deposition has been made by officials of MMTC for petitioner to cross examine them. 9. Heard both sides and perused materials available on record. 10. Admittedly, appellate authority is following procedures prescribed under Income Tax Rules. There is also no prohibition for cross examining parties concerned, if required. But petitioner cannot pessimistic that his application for request to cross examine will be rejected. He should be optimistic and it is for appellate authority to consider request of petitioner with regard to Cross examination of officials before deciding final issue. 11. Therefore, without going into merits of contentions raised in affidavit filed in support of writ petition Nos.1776 to 1782 of 2015, writ petition Nos.1776 to 1782 of 2015 are dismissed with liberty to the petitioner to agitate all issue raised in these writ petitions before Appellate Authority. It is for Appellate Authority to consider request of petitioner, before passing final order and before deciding all issues in appeal as well as in applications, and pass orders on merits and in accordance with law. appellate authority is at liberty to 7 permit petitioner to cross examine officials of MMTC, if required. No costs. Consequently connected miscellaneous petitions are closed. 12. Insofar as Writ Petition Nos.1783 to 1791 of 2015 are concerned, issue raised in these writ petitions cannot be decided at this stage by way of these writ petitions and, therefore, it is left open to petitioner to agitate same before appellate authority in terms of provisions of Income Tax Rules. appellate authority shall take up matter and complete same on day to day basis as time granted by this Court has already been expired. No costs. Consequently, connected miscellaneous petitions are closed. 27.01.2015 ga Index: Yes/No Internet: Yes To Commissioner of Income Tax (Appeals) (C)-II Office of Income Tax Department, 108, M.G.Road, Nungambakkam, Chennai 600 034 S.VAIDYANATHAN,J., ga 8 W.P.Nos.1776 to 1791 of 2015 and M.P.Nos.1 to 1 of 2015 27.01.2015 Naresh Prasad Agarwal v. Commissioner of Income-tax (Appeals)(C)-II, Chennai