TMI Blog1971 (2) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... e meantime, however, one Guruswami, who was closely associated with the petitioner's business and who was his employee, was dismissed on a charge of misappropriation, and a criminal complaint preferred by the petitioner against Guruswami ended in his conviction under section 408, Indian Penal Code. In the criminal case, the petitioner is said to have figured as P.W.2. As already stated, an enquiry into the accounts and the dealings of the petitioner was fixed for 25th March, 1965. This enquiry was in fact attributable to some material and information which the department secured by then in relation to the assessments for the years 1961-62, 1962-63 and 1963-64. According to the respondent, the information so secured was relatable to certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cross-examination of Guruswami, was ignored. In the meantime, the petitioner is said to have approached the Deputy Commissioner of Commercial Taxes with a request that the assessment proceedings proposed by the Joint Commercial Tax Officer, Tiruchi Town I, may be kept in abeyance since no adequate or effective opportunity was given to him to cross-examine the informer Guruswami about the irregularities of the petitioner's accounts and dealings. During the pendency of such, but so-called, revision petitions before the Deputy Commissioner of Commercial Taxes, Tiruchirappalli Division, the Joint Commercial Tax Officer, Tiruchi Town, voluntarily changed his mind and gave a notice to the petitioner as follows: "In respect of your accounts for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed the impugned order copiously incorporating the material furnished to his office by Guruswami and in fact he would conclude by saying that the anamath records filed by Guruswami did relate to the petitioner's clandestine business and the transactions recorded therein were thus suppressed. He also referred to the previous events that transpired. He would also refer to the date of hearing. He would further refer to 21st July, 1965, as the date fixed for the cross-examination of Guruswami and say that Guruswami was not available, since he was absconding, after he was sentenced in the criminal court for misappropriation under section 408, Indian Penal Code. In fact, he records that Guruswami was not only absconding, but the police were appre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by taxing authorities in exercise of their statutory powers under the taxation laws of the State. If, therefore, an authority vested with the jurisdiction to reopen an assessment under peculiar and stated circumstances prescribed by a statute were to do so, then such an authority should not theoretically follow the text of the provisions enabling him to reopen but should make it a point to see that the material on which he intends to act and reassess or reopen a closed assessment is based upon data which is acceptable according to judicial conscience. Here is a case, where a dismissed employee who has suffered the rigour of criminal law and who has escaped even the process of law. since he is absconding, is the informer in the action. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the petitioner that he had no effective opportunity to prove his innocence. In fact, the opportunity that was sought in this case was to cross-examine the dismissed employee of the petitioner and to establish that the material in the nature of slips produced by him never had any bearing on the business of the petitioner as a dealer and also to impress on the assessing authority that the statement of Guruswami recorded by the authority is wrong and unsustainable. In this view of the matter, the non-availability of Guruswami or the inconvenience in the matter of production of Guruswami physically for the purpose of cross-examination sinks into insignificance, because in the ultimate analysis the petitioner was not given a real opportunity t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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