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Showing 381 to 400 of 2046 Records
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2018 (10) TMI 1670
Revision u/s 263 - Deduction u/s.80-IB(10) to land owners - claim of deduction u/s.80-IB(10) has been made by both the land owner, being the assessee herein and the Joint Venture Partner, being M/s.Narendra Properties Ltd. - HELD THAT:- Land owner under similar circumstances would be entitled for the benefit of deduction u/s.80-IB(10) of the Act in the computation of the taxable total income. This view has been clearly expressed by the Appellate Authority and the ld. Assessing Officer has in the course of assessment followed such view expressed by the Appellate Authority, when granting the assessee benefit of deduction u/s.80-IB.
Thus clearly the revision as done by the Commissioner of Income Tax u/s.263 of the Act is based exclusively on change of opinion, which is not permissible, when passing a revision u/s.263 of the Act. The Order u/s.263 is based purely on change of opinion and the same being impermissible under the provisions of the section 263, the order dated 29/03/2017 passed by the Principal Commissioner of Income Tax u/s.263 of the Act in the case of the assessee herein stands quashed. - Decided in favour of assessee.
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2018 (10) TMI 1669
TP Adjustment - method adopted by the transfer pricing officer for computing the arm's-length price - HELD THAT:- It is undisputed that the method of computation of arm's-length price adopted by the transfer pricing officer is not as per any of the method prescribed under the act for the extant period. M/S. KODAK INDIA PVT. LTD. [2016 (7) TMI 677 - BOMBAY HIGH COURT] held that method adopted by revenue to determine ALP was alien to the methods prescribed under section 92C and, therefore, declined to restore the issue to the Assessing Officer for redetermining the ALP by adopting one of the methods as listed out in section 92C.
Respectfully following the precedent we hold that since the method adopted by the transfer pricing officer for computing the arm's-length price is not as per the provision of law, the action of the authorities below is not sustainable. Hence, we direct that addition in this regard should be deleted.
Addition u/s.14A - Dividend income as exempt from tax u/s. 10(34) - HELD THAT:- It is the case of the assessee that financials for the current year are same. In this view of the matter disallowance on account of interest for making the tax-free investments is not sustainable. Furthermore, the learned counsel of the assessee placed reliance upon the decision in the case of HDFC Bank Ltd. [2016 (3) TMI 755 - BOMBAY HIGH COURT] is also cogent in this regard.
As regards the disallowance of 0.5% on the average value of investment is concerned the submission of the learned counsel of the assessee is cogent that the special bench in the case of Vireet Investment Pvt. Ltd. [2017 (6) TMI 1124 - ITAT DELHI] has held that for computing the average value of investment only investments which yield exempt income is to be considered. Accordingly, we remit this issue to the file of assessing officer to consider the issue afresh in light of the decision of special bench in the case of ACIT vs. Vireet Investment Pvt. Ltd. for the necessary computation in this regard.
Deduction u/s.80IA - assessee opted not to claim the deduction under this section for the current year and the deduction will be claimed by it for 10 consecutive years beginning from any of the subsequent assessment year as may be decided by the company - HELD THAT:- As decided in WARTSILA INDIA LIMITED VERSUS DCIT, RANGE-3 (3) MUMBAI [2015 (6) TMI 518 - ITAT MUMBAI] no claim was made by the assessee u/s 80IA and admission by the D.R. that no such claim was made, there is no question of making any addition/disallowance. - Decided in favour of the assessee.
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2018 (10) TMI 1668
The High Court of Bombay admitted an appeal based on substantial questions of law regarding the correctness of Tribunal's decision on credit utilization and penalty imposition under Cenvat Credit Rules, 2004. The Respondent's counsel waived service, and the case is to be heard with another appeal.
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2018 (10) TMI 1667
Waiver of Interest - Whether on the facts and in the circumstances of the case and in law was the Tribunal justified in holding that the credit is wrongly taken then mere non-utilitisation would not lead to waiver of interest? - HELD THAT:- Hon'ble Madras High Court The Commissioner of Central Excise, Madurai V/s. M/s. Strategic Engineering (P) Ltd. [2014 (11) TMI 89 - MADRAS HIGH COURT] has held that in the absence of utilisation of the cenvat credit in view of the subsequent amendment to Rule 14 of Cenvat Credit Rules, 2004, no interest can be levied. This is in view of the words 'taken or utilised' being substituted in the above Rule by the words 'taken and utilised' being clarificatory and applies to period prior to the amendment. Thus, this issue requires consideration.
Appeal allowed by way of remand.
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2018 (10) TMI 1666
Reassessment after order u/s 263 - proper opportunity before the AO during reassessment proceedings - AO has received the records on 18.03.2015 and passed the impugned assessment order on 31.03.2015 i.e. within a period of 12 days - saddle the entire share application money as the income of the assessee - HELD THAT: In the light of the Hon’ble Supreme Court’s decision in Tin Box Company [2001 (2) TMI 13 - SUPREME COURT] and Jansampark Advertising & Marketing Pvt. Ltd. [2015 (3) TMI 410 - DELHI HIGH COURT] and the DR accepted that assessee did not get proper opportunity before the AO during reassessment proceedings, we set aside the order of the CIT(A) and remand the matter back to the file of AO for de novo assessment and to decide the matter in accordance to law after giving opportunity of being heard to the assessee. - Appeal of assessee is allowed for statistical purposes.
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2018 (10) TMI 1665
Maintainability of the application - Initiation of Corporate Insolvency Resolution Process - Section 7 of the Insolvency and Bankruptcy Code, 2016 - Held that:- The question whether the Assignment Agreement dated 17th April, 2015 is genuine or not cannot be looked into by the Adjudicating Authority while deciding the application under Section 7 or by this Appellate Tribunal, till the Corporate Debtor alleges the same and raise the objection under Section 65 of the Code. No such plea has been taken by the Corporate Debtor before the Adjudicating Authority alleging fraud on the part of the Financial Creditor for initiation of proceedings under Section 65 of the Code. Therefore, this Appellate Tribunal cannot look into such question of fraud.
Further, the provision of NPA relates to SARFAESI Act, 2002 and has nothing to do with Code.
Appeal dismissed.
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2018 (10) TMI 1664
Substantial question of law as framed:
“Whether the Income Tax Appellate Tribunal was justified and correct in upholding disallowance of 50% of the expenditure claimed by the assessee under the head of sales promotion expenses as not meeting the parameters specified in Section 37 (1) of the Income Tax Act, 1961?”
To be listed in category of "Regular Matters" as per its turn.
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2018 (10) TMI 1663
Application for withdrawal of appeal - Monetary amount involved in the appeal - Held that:- The revenue involved in each appeal is less than 20 lacs, therefore the applications filed for withdrawal of appeals are allowed - appeal dismissed as withdrawn.
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2018 (10) TMI 1661
Addition u/s. 68 - addition on share subscription money received - Proof of identity, creditworthiness and genuineness of the share applicants - HELD THAT:- Section 68 provides that if any sum found credited in the year in respect of which the assessee fails to explain the nature and source shall be assessed as its undisclosed income. In the facts of the present case, both the nature & source of the share application received was fully explained by the assessee.
The assessee had discharged its onus to prove the identity, creditworthiness and genuineness of the share applicants. The PAN details, bank account statements, audited financial statements and Income Tax acknowledgments were placed on AO's record. Without doing so, the addition made by the AO is based on conjectures and surmises cannot be justified. No addition was warranted under Section 68. Therefore, we do not want to interfere in the impugned order of CIT(A). - Decided against revenue.
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2018 (10) TMI 1660
Procedure while deciding appeal - Right to entertain appeal on merit after holding that same is not maintainable - Alternative remedy of filing an appeal before the NCLAT - HELD THAT:- Judgment of NCLAT holding that the appeal filed by the Central Government in that case not maintainable in view of the fact that the Notification dated 24.05.2017 travels beyond the scope of the removal of difficulties provision is correct.
We are of the view that, having held that the appeal is not maintainable, the appellate Tribunal should not have adjudicated upon either the limitation aspect of the case or the merits of the particular Scheme before it. Therefore, while upholding the judgment passed by the appellate Tribunal on the ground that the appeal itself was not maintainable, we set aside the judgment insofar as it purports to deal with the limitation aspect of the case and the merits including the declaration of the Scheme as being illegal.
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2018 (10) TMI 1659
Refusal of the respondents to extend the provisions of the Employees Pension Scheme, 1995 to them - changes brought about by the Employees' Pension (Amendment) Scheme, 2014 - Whether the provisions of the Employees Pension Scheme, 1995 and the Employees' Pension (Amendment) Scheme, 2014 are valid and sustainable or not?
Held that:- Considering the fact that, the pension fund is created for the purpose of providing succour to the employees in the their old age, taking into account the further fact that the fund is created by collecting contributions from the employers and employees, casting no financial burden on the State, it follows that no scheme that defeats the purpose of the enactment by reducing the pension payable to the employees in their old age to a ridiculously low amount, which is not sufficient even for ensuring a decent life to them, cannot be sustained. There is no justification for stealing bread from the mouths of the pensioners to secure the Pension Fund. Though the Fund is replenished by the present workers, its beneficiaries are the old and infirm former workers; the pensioners. The Fund is meant for their sustenance.
The stated objective of the amendments is to prevent depletion of the fund. The said apprehension is absolutely baseless. The number of persons who are contributing to the Provident Fund as well as the Pension Fund have only grown over the years. The work force in our country would only grow further in the future. It has to be stated here that in view of the increase in the number of workers over the years, the contributions would also grow. The phenomenon is only bound to continue in future. Therefore, even when payments of pension are made to the retired employees, the pension fund would continue to get replenished with the contributions of the new entrants. The said ongoing process would maintain the Fund in a stable condition. If at all, a situation where the Fund base gets eroded occurs, the situation could be remedied at that time by enhancing the rates of contributions of persons contributing to the Fund through a legislative exercise. The attempt to maintain the stability of the fund by reducing the pension would only be counter productive and would defeat the very purpose of the enactment.
The object sought to be achieved is stated to be prevention of depletion of the Pension Fund, which cannot be accepted as a justification to support the classification. Inasmuch as the statutory scheme is to make the Pension Fund enure to the benefit of the homogeneous class of the totality of employees covered by the Provident Fund, a further classification of the said class by formulating a Scheme is ultra vires the power available to the Central Government under Sections 5 and 7 of the EPF Act. Therefore, it has to be held that, the impugned amendments are arbitrary, ultra vires the EPF Act and unsustainable.
Petition allowed.
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2018 (10) TMI 1658
Release of consignments - “Yellow Peas/green peas” imported - issuance of “Detention Certificate” for waiver of Demurrage and Container Detention Charges in terms of Regulation 6(1)(1) of Handling of Cargo in Customs Areas Regulations 2008 - Held that:- Notice to the respondents returnable on 15.11.2018.
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2018 (10) TMI 1657
Non cooperation by assessee - sufficient opportunities were given to the assessee to represent his case - No appearance by assessee - AO made addition as unexplained investment - CIT(A) proceeded further with the appeal ex parte and decided the appeal making the addition of unexplained investment - Tribunal remanded the proceedings before the CIT [A] for fresh adjudication - HELD THAT:- As relying on PRINCIPAL COMMISSIONER OF INCOME TAX 3 VERSUS ASHOKJI CHANDUJI THAKOR [2018 (6) TMI 1546 - GUJARAT HIGH COURT] we are of the opinion that in absence of any explanation by the assessee on the investment in question, AO was justified in making the addition of unexplained investment and thereafter learned CIT(A) was justified in confirming the same. Therefore, even the order passed by the learned CIT(A) which was on merits was not required to be interfered with by the learned CIT(A) and ought not to have been quashed and set aside without assigning any reasons. Under the circumstances, the impugned orders passed by the learned Tribunal cannot be sustained. - Decided in favour of revenue
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2018 (10) TMI 1656
Action under section 69 read with section 132 of CGST Act - person not participated in the proceedings before the officer concerned - appearance after notice under Section 70 - Held that:- The issue requires a scrutiny - it is directed that the petitioner would ensure his appearance in compliance of the impugned notices issued by the Central Intelligence Unit, Central GST, Meerut Zone, Noida - On appearance of the petitioner before the authority concerned, it is made clear that he would render all support investigation, but he will not be arrested except with the leave of the Court.
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2018 (10) TMI 1655
Revival of Contempt petition - Held that:- The amount that is to be paid to Mr. Dave’s client shall be paid on or before 15.12.2018. We also make it clear that interest shall begin ticking on this amount at the rate of 12% p.a. for delayed payment beyond 30.09.2018 - no time beyond 15.12.2018, in any case, will be given. We also make it clear that Mr. Dave may revive his I.A. for contempt, if payment is not made - Application petition disposed off.
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2018 (10) TMI 1654
Delayed payment of allotment money - hire-purchase scheme - eviction of allotment - Held that:- It is abundantly clear that the allottee was allotted House No. E376 under the hirepurchase scheme vide letter dated 05.10.1994 by the GDA. The allottee's conduct of delayed payment with respect to the allotment is evident from the fact that even the balance registration amount of ₹ 38,325/which was required to be deposited within a week from the issuance of letter dated 05.10.1994 was actually deposited on 17.10.1994. Further, the deposits made thereafter, were also done so without following any schedule as is evident from the facts stated hereinabove in para No.4 - It is abundantly clear that the allottee was allotted House No. E376 under the hirepurchase scheme vide letter dated 05.10.1994 by the GDA. The allottee's conduct of delayed payment with respect to the allotment is evident from the fact that even the balance registration amount of ₹ 38,325/which was required to be deposited within a week from the issuance of letter dated 05.10.1994 was actually deposited on 17.10.1994. Further, the deposits made thereafter, were also done so without following any schedule as is evident from the facts stated hereinabove in para No.4.
It is wellsettled principle of law that unlawful possession of public property without having paid for the same would tantamount to unjust enrichment and would be against public interest.
It is directed that the allottee be evicted forthwith - appeal allowed.
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2018 (10) TMI 1653
Admission of petition under I& B Code - initiation of Corporate Insolvency Resolution Process - Held that:- During the course of hearing it has been brought to my notice that a view has been taken in the cases of subsidiaries of M/s Gitanjali Gems Limited by respected NCLT Mumbai Benches that no separate “Admission Order” is required due to the reason that the assets have already been seized byEnforcement Directorate and other StatutoryAuthorities. So, it has beenheld that the documents and related evidences, as also accounts of the Debtor Company,since already under the control of SFIO, hence no purpose shall be served if IRP/ Resolution Professional is appointed to independently commence the insolvency proceedings in respect of each case. However respected co-ordinate benches of NCLT have granted liberty to the Petitioner in those cases to file fresh insolvency Petition on completion of Investigation within three months.
It is true that various Government agencies have taken action against the Debtor Company but there is no harm,rather it shall facilitate, in my humble opinion, if the appointed IRP/ Resolution Professional shall also join with them in ascertaining the exact magnitude of default committed by this Debtor Company. It is worthwhile to express that all the agencies are expected to co-operate in investigation by exchanging the information gathered respectively by them. In that process the presence of the Resolution Professional is going to be very useful.
One more aspect supporting the “Admission” of the Petition has been conveyed, prima-facie convincing, that the Government Agencies who have seized the assets of the Defaulters are being only protected from further damage. But ultimately those seized assets have to be distributed among the creditors, either Financial Creditor or Operational Creditor. That process of disbursement can only be possible under the newly enacted I&B Code 2016 - in a situation when Financial Debt has been ascertained and undisputedly the Debtor Company had defaulted in repayment of loan, therefore this is fit case for „Admission‟ under I& B Code.
This CP (IB)-3585 (MB)/2018 stood “Admitted” - this CP (IB)-3585 (MB)/2018 stood “Admitted”
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2018 (10) TMI 1652
Disallowing claim u/s 80-IA(4) - distribution of power within the industrial park area - AO rejected the claim of the assessee in view of the provision u/s 80-IB(4) - CIT-A deleted the addition - HELD THAT:- Assessee placed reliance upon the decision of the Cochin Bench titled as Kinfra Exports Promotion Industrial Parks Ltd. V. Dy. CIT [2013 (9) TMI 443 - ITAT COCHIN] in which it was specifically held that the assessee would be entitled for deduction u/s 80-IA of the Act in respect of profit derived from transmission or distribution of power through network of new transmission or distribution of lines.
CIT(A) has also relied on case of CIT Vs. ABG Heavy Industries Ltd [2010 (2) TMI 108 - BOMBAY HIGH COURT] where in the similar situation the claim of the assessee was allowed u/s 80IA of the Act. Taking into account, all the facts and circumstances, we are of the view that the CIT(A) has decided the matter of controversy judiciously and correctly which is not liable to be interfere with at this appellate stage.
Disallowance of miscellaneous expenses - expenses incurred under various heads even though the assesses has failed to furnish documentary evidence in respect of these expenses - Held that:- At time of appellate proceeding, the assessee has submitted the necessary evidence in support of his claim. However, some of the evidences were not amenable for cross verification. After going through the evidence adduced by Ld. Representative of the assessee, the CIT(A) disallowed the claim to the extent of 15% of ₹ 39,36,096/- which nowhere seems unjustifiable. Since the matter of controversy has duly been adjudicated by the CIT(A) by going through the relevant evidence on record and also disallowing the claim to the extent of 15% which was related to the non-production of evidence, therefore, we are of the view that the CIT(A) has decided the matter of controversy judiciously and correctly which is not liable to be interfered with.
Addition on account of Management Charges paid to sister concern - as the business of the sister concern was quite different, therefore, no Management Charges of any kind was payable to it - CIT(A) restricted the part claim to ₹ 10,00,000/-- HELD THAT:- As decided in own case the finding of the AO that M/s King Prawns Ltd. [sister concern] is not in the business of power generation, is not factually incorrect. In fact M/s King Prawns Ltd. on 16th Oct., 2000, entered into MOU with German Firm to set up a Wind farm on its site at Palghar Dist. Thane and this wind farm has to be set up through a subsidiary company of Kings Prawns Ltd. i.e. M/s K.P. Power Pvt. Ltd. The MOU could not materialize. M/s King Prawns Ltd. had entered into agreement with German party for technical consultation for a similar project. It is also true that M/s King Prawns Ltd. has spent about ₹ 12 lakhs in respect of its agreement with the assessee. Under these circumstances, we uphold the order of the CIT(Appeals) wherein the disallowance is restricted to ₹ 10 lakhs .
Accrual of income - Treating ‘Advance against Transmission charges’ as income of the F.Y. 2005-06 - as per assessee said amount has been treated as liability in the balance-sheet as on 31.03.2006 - HELD THAT:- No doubt, in the financial statement of F.Y. 2005-06, the assessee has treated the receipt of the amount of ₹ 3,46,80,000/- as advance against transmission charges from M/s. Neg Micon (India) P. Ltd. The receipt has been treated as income in the next F.Y. 2006-07. It on account of accounting principal considered by the assessee in its books of account, the situation nowhere seems violated the principal of accountancy, therefore, in the said circumstances, we are of the view that the assessee has rightly offered the said receipt as income in the F.Y. 2006-07 the period in which the work has been completed. Accordingly, we set aside the finding of the CIT(A) on this issue and decide this issue in favour of the assessee against the revenue.
Undisclosed Business receipts - TDS has been deducted u/s 194C on the impugned payment and TDS certificate has been issued in the name of the assessee - no reason for MSEB to route the payment payable to MIS. NEG MICON through the assessee - HELD THAT:- We noticed that MSEB has deducted TDS on the amount of ₹ 2,83,29,387/- which is claimed to have been received by assessee on behalf of MIS. NEG MICON. As rightly pointed out by CIT(A) the assessee did not substantiate its submissions with any correspondence/agreement entered between the assessee and MIS. NEG MICON. It is also not clear from the orders as to whether the TDS amount deducted on the above said payment has been claimed by assessee or it has been claimed by MIS. NEG MICON. Claim for TDS amount deducted on the above said payment, to some extent, will throw light on this issue. In the absence of any evidence supporting the claim of the assessee, it will be difficult for the tax authorities to accept the contention of the assessee - the assessee cannot be taxed on receipt to which it is not entitled to. Hence, we are of the view, the assessee may be provided with one more opportunity to substantiate its submissions with any credibility evidence.
Disallowance of site management development expenses - HELD THAT:- The said payment was not properly mentioned and in details the name of persons has already been mentioned. The said payment was not verifiable, therefore, the CIT(A) disallowed the 15% of total expenses to the tune of ₹ 39,36,096/- which seems justifiable specifically in the circumstances, when no evidence of any kind was produced before us in support of his claim, therefore in the said circumstances, we confirmed the finding of the CIT(A) on this issue.
Accrual of income - Addition of advance lease rent received - lease rent is received in advance by the appellant company from various sub-lessees for the entire period of 25 years of the sub-lease as a deposit and out of adjusted in each year - HELD THAT:- The total lease rent was to the tune of ₹ 2,75,20,000/- and 1/5th comes to the tune of ₹ 11,00,800/- which was liable to be taxed in the further 25 years. Since the finding of the CIT(A) in the earlier year nowhere changed or verified and we also finding it justifiable to assess the 1/25th rent in the next 25 years, we are of the view that the finding of the CIT(A) is quite justifiable which is not liable to be interfere with at this appellate stage. Accordingly, this issue is decided in favour of the revenue against the assessee.
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2018 (10) TMI 1651
Addition u/s 68 - unexplained deposits of money from unknown sources - identity and creditworthiness of the share applicant as well as the genuineness of the transaction - as per assessee payments made to parties covered u/s 40A(2) - HELD THAT:- We find that the assessee has made a disclosure in its ‘Notes to Accounts’ and Form No. 3CD, the details of payments made to parties covered u/s 40A(2) of the Act. Therefore, the observation of the AO that “from the details brought on record in respect of BCPL, it is seen that it is apparently associate/group concern of the assessee company” is misplaced. In the instant case the AO failed to examine the reply filed by the assessee whcih explains the identity, capacity of the investor and genuineness of the transaction. The share application money was received by the assessee by account payee cheques through regular banking channels.
it is well-settled that in order to discharge the onus, the assessee must prove (i) the identity of the creditor,(ii) the capacity of the creditor to advance money; and (iii) the genuineness of the transaction.
After the assessee has adduced evidence to establish prima facie the aforesaid, the onus shifts to the department but we find that the AO has failed in the instant case to find fault with the submissions made by the assessee. The AO could have made investigations to find out the truth of the case. On the other hand, the AO has resorted to general propositions. AO has failed to draw any adverse conclusion on the basis of material evidence that the receipt of cash credit of ₹ 2,44,50,000/- from BCPL is not a genuine one. - Decided in favour of assessee.
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2018 (10) TMI 1650
Principles of natural justice - cross-examination of witnesses not done whose statements have been relied on - Held that:- When the appellant has been called upon to answer to the accusation made against him, it is his right to defend himself reasonably at the earliest opportunity afforded to him, and it would in no way prejudice the Department or stall their inquiry if the prayer is allowed. Waiting till the adjudication process is over and then deciding upon whether any prejudice was caused to the appellant, on grounds of not affording an opportunity to cross-examine the witnesses, whose statements were relied on, would amount to an abuse, in so far as the alleged delinquent being absolved of the consequences merely for reason of a procedural error.
In case if the appellant is permitted to cross-examine the witnesses at an earlier stage, it would only help the Department to arrive at a right conclusion as to whether the statements of those witnesses, who had withstood the rigor of being subjected to cross-examination, are to be relied upon in the adjudicating process against the appellant or not. It can never be premature because the statements are already in the file and in case the statements are against the appellant, implicating or accusing him, undoubtedly, it would be used against him. Such statements will definitely not be ignored by the Adjudicatory Authority.
The respondents are given an opportunity to the appellant to cross-examine the witnesses, who have given statements against the appellant - appeal allowed.
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