TMI Blog2013 (3) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... rocessors Pvt. Ltd. vs. C.C. Excise (1990 (8) TMI 160 - HIGH COURT OF ANDHRA PRADESH AT HYDERABAD) wherein a similar objection made by the petitioner was rejected stating that the Excise Department which had initiated the proceedings before the Collector against the petitioner has aright to have the assistance of the Investigating Officers who gathered the material on the basis of which the proceedings had been initiated. Also see Lakhanpal National Ltd. Vs. U.O.I. [1992 (9) TMI 94 - HIGH COURT OF JUDICATURE AT BOMBAY]. Failure to understand as to how the presence of Investigation Officer in the cross-examination proceedings and re-examination of witnesses by the Investigation Officer would be described as bias causing prejudice to the petitioner as the Investigation Officer collected statements from a witness commencing from 07.00 p.m. on 05.06.2006 and ended at 02.30 hours on the next day. The next witness was examined for half an hour from 2.30 a.m. on 06.12.2006. Hence, such an Investigation Officer shall not be allowed to be present before the adjudication authority for conducting re-examination of witnesses is unable to be appreciated the submissions made by the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs.2,48,59,309/- and education cess ofRs.3,76,748/- should not be demanded from them. The show cause notice also directed the petitioner firm to show cause as to why the penalty and interest should not be charged on them. The Petitioner firm was also directed to produce evidences on which they intended to rely in support of their defence. 4. The Petitioner sent an interim reply dated 12.12.2008. The petitioner also sought for cross-examination of all the witnesses including the mahazar witnesses. The second respondent fixed the personal hearing for cross examination of witnesses on 30.12.2008 at the office of the second respondent and 12 witnesses were appeared for cross-examination on that day. 5. The petitioner firm was represented before the second respondentthrough its counsel and Central Excise Consultant. The Investigation Officer Mr. Kalyanapasupathy was also present before the second respondent, who conducted re-examination of the witnesses in the cross-examination proceedings. The counsel and the Consultant for the petitioner protested against the presence of Mr. Kalyanapasupathy. According to them, the Investigation Officer would influence and intimidate the witness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner vehemently contended that neither the Investigation Officer M. Kalyanapasupathy, nor any of the members of the Investigating team shall be present during cross-examination proceedings and they shall not do re-examination, since the same would influence the entireproceedings in favour of the Department. The adjudicating authority namely, the second respondent, himself would examine/ re-examine/cross-examine the witnesses. 10. The learned counsel for the petitioner submitted that the presence of Investigation Officer in the cross-examination proceedings is nothing but the abdication of the authority by the second respondent. The petitioner relied on the following judgements in this regard:- i)Commissioner of Income Tax, Shimla v. Green world corporation, Parwanoo, reported in 2009 (7) SCC 69 ii)Dinshaw Darabshaw Shroff vs. Commissioner of Income Tax, Central,reported in (1943) 11 ITR 172 (Bom) iii)Mahadayal Premchandra v. CTO reported in 1959 SCR 551 iv)State of U.P. v. Maharaja Dharmander Prasad Singh reported in 1989 (2)SCC 505 v)K.S.Shivji Co. Vs. Joint Commercial Tax Officer, Esplanade Division,Madras reported in 1965 (16) STC 769 (Mad) 11. The next submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Ltd. v. U.O.I reported 1993 (63) ELT 61 (Bom.) 14. In fact, the leaned counsel for the respondents contended that having availed the assistance of a lawyer and a Consultant, the petitioner would not object for the representation of the Department by the Investigation Officials during the adjudication proceedings before the second respondent. It was argued that if the petitioner had any grievance, he could make out before the adjudicating authority and he could not demand that the investigation officer should not participate in the adjudication proceedings representing the department. 15. I have considered the submissions made on either side. 16. The first submission of the learned counsel for the petitioner was that the second respondent abdicated its authority by permitting the Investigation Officer to be present in the Cross-examination proceedings. 16.1 I am not able to understand as to how the presence of the Investigation Officer in the cross-examination proceedings or re-examinations of witnesses by the Investigation Officer would amount to abdication of authority by the second respondent. In fact, in my view, if the second respondent refused to permit the presenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the decision making process of the Assessing authority. The same was disapproved by the Hon'ble Apex Court. The Apex Court has held that the Commissioner or any other higher authority may have supervisory jurisdiction interms of circulars or orders issued by the CBDT, but the same shall not be construed to mean that the Assessing Authority exercising quasi-judicialfunction, would lose its independence to pass an independent order of assessment. In the said judgement, the Honourable Apex Court has held as follows:- "No doubt in terms of the circular letter issued by CBDT, the Commissioner or for that matter any other higher authority may have supervisory jurisdiction but it is difficult to conceive that even the merit of the decision shall be discussed and the same shall be rendered at the instance of the higher authority who, as noticed herein before, is a supervisory authority. It is one thing to say that while making the orders of assessment the assessing officer shall be bound by the statutory circulars issued by CBDT but it is another thing to say that the assessing authority exercising quasi-judicial function keeping in view the scheme contained in the Act, would lose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself to the matter before it: it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case." Here in this case, there is no allegation that the second respondent, the adjudicating authority, has exercised its discretion at the dictates of other authority. Hence, the judgement relied on by the petitioner is not applicable. v) In K.S.Shivji Co. Vs. Joint Commercial Tax Officer, Esplanade Division, Madras (cited supra) also the assessing officer failed to act independently and he acted as per the direction of the Superior authority. The same was disapproved by the Court. The following passage from the said judgement is extracted hereunder:- "We need hardly observe that the assessment proceedings are quasi judicial in nature and therefore the assessing authority has an independent duty to carefully scrutinize the materials for assessment and satisfy himself, thoroughly uninfluenced by any direction of superior officers, and assess the tax payable on that basis. The assessing authority, in this case, has obviously failed to do his duty." The said judgement cannot be applied to the facts of this case as there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her was suspended from service and was charge-sheeted and an enquiry committee was appointed including the Principal of the School as a Member. Based on the finding of the said committee, the teacher was removed. It was found that the Principal was deeply biased against the teacher. The Principal had given notice to the delinquent for initiating defamation proceedings against him. It was alleged that his presence in the committee vitiated the atmosphere for a free and fair trial. Hence, the said judgementcould not be applied to the present case. The relevant passage of the said judgement is extracted hereunder:- "Where one of the members of the Enquiry Committee has a strong hatred or bias against the delinquent of which the other members know not or the said member is in a position to influence the decision-making, the entire record of the enquiry will be slanted and any independent decision taken by the appellate authority on such tainted record cannot undo the damage done. Besides where a delinquent is asked to appear before a committee of which one member is deeply hostile towards him, the delinquent would be greatly handicapped in conducting his defence as he would be inhibi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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