TMI Blog2017 (12) TMI 1710X X X X Extracts X X X X X X X X Extracts X X X X ..... x or conclude that payment of tax has been evaded on the basis of statements of individuals, the assessee must necessarily be granted an opportunity to cross examine. Such adverse material can neither be introduced nor form the foundation for the imposition of additional tax without an opportunity being accorded to the assessee to challenge the statement in cross examination - this Court finds itself unable to sustain the orders passed by the Assessing Authority as well as the Tribunal. Revision allowed. - TRADE TAX REVISION No. 937 of 2007 - - - Dated:- 5-12-2017 - Yashwant Varma, J. For the Appellant : Rakesh Ranjan Agrawal, Suyash For the Respondent : C.S.C. ORDER Heard Sri Suyash Agar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereafter proceeded to assess the escaped turnover at ₹ 10,00,000/and imposed tax on the premise that no transport of goods had in fact taken place to Diu. On an appeal preferred by the assessee before the Tribunal in the second round, the Tribunal has upheld the above by noticing that although notices had been issued to Ghanshyam Pandey, he could not be traced out since the transport company itself had been closed down. However, the statement of Ghanshyam Pandey alone was relied upon by the Tribunal as well as the Assessing Authority to sustain the addition of turnover and a consequential levy of additional tax. The Court finds itself unable to sustain the view taken both by the Assessing Authority as well as the Tribunal. The reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed reliance upon the following observations as made by the Supreme Court in Andaman Timber Industries Vs. Commissioner of Central Excise, KolkataII (2016) 15 SCC 785 6. According to us, not allowing the assessee to crossexamine the witnesses by the adjudicating authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority to presuppose as to what could be the subjectmatter of the crossexamination and make the remarks as mentioned above. We may also point out that on an earlier occasion when the matter came up before this Court in CCE v. Andaman Timber Industries Ltd.[CCE v. Andaman Timber Industries Ltd., (2005) 12 SCC 151] , order dated 1732005 was passed remitting the case back to the Tribunal with the directions to decide the appeal on merits giving its reasons for accepting or rejecting the submissions. 8. In view of the above, we are of the opinion that if the testimony of these two witnesses is discredited, there was no material with the Department on the basis of which it could justify its action, as the statement of the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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