No. Where an order carries adverse civil consequences, the assessee must be given a real opportunity of being heard, must be supplied the material relied on against him, and must be allowed to cross-examine a person whose statement is used against him. The Supreme Court has held that denying cross-examination of a witness whose statement forms the basis of the order is a serious flaw that makes the order a nullity.
Natural justice in tax has three practical limbs: notice of the case you have to meet, access to the material being used against you, and the chance to test that material before an order is made.
The first limb is a pre-decisional hearing. In Sahara India (Firm) v. CIT a larger bench of the Supreme Court read the principles of natural justice into section 142(2A) even though the provision did not expressly require a hearing, holding that the exercise of that power leads to serious civil consequences and therefore an opportunity of pre-decisional hearing must be read in. The requirement of a reasonable opportunity of being heard before an order is made is generally read into a statute where the order carries adverse civil consequences. The court also held that the Commissioner's approval must involve genuine application of mind and that the power cannot be used by the Assessing Officer merely to shift his own responsibility.
The second limb is disclosure of material. Dhakeswari Cotton Mills v. CIT established that the revenue cannot use the result of a private inquiry against an assessee without communicating the substance of the information and giving an opportunity to meet it. Kishinchand Chellaram v. CIT applied the same principle to evidence gathered behind the assessee's back. On the reasoning in Gargi Din Jwala Prasad, merely offering cross-examination without supplying copies of the statements or even the names of the witnesses is an eye-wash.
The third limb is cross-examination. In Andaman Timber Industries v. Commissioner of Central Excise the Supreme Court held that not allowing the assessee to cross-examine the witnesses whose statements were made the basis of the order is a serious flaw which makes the order a nullity, amounting to a violation of the principles of natural justice. The court also declined to speculate about what cross-examination might have produced, rejecting the tribunal's approach of guessing at the assessee's examination strategy.
In faceless assessment these principles are written into the statute. Section 144B requires that where a variation prejudicial to the interest of the assessee is proposed, a show cause notice must be served calling on him to explain why the variation should not be made, and the assessee may furnish a response by the specified date. Section 144B also provides that the assessee may request a personal hearing to make oral submissions, and that where such a hearing is allowed it shall be conducted exclusively through video conferencing or video telephony, with the Board required to establish facilities so that assessees are not disadvantaged by lack of access.
There is a timing rule that catches people out. The request for cross-examination should be made during the assessment proceedings, not raised for the first time in appeal — on the approach taken in Hindusthan Tobacco Company, a belated request is treated differently from one refused at the assessment stage. The same goes for a request for copies of statements and for a personal hearing.
So the working sequence in a reply is: identify every statement, report or third-party document the notice relies on; ask for a copy of each; ask for the opportunity to cross-examine each person whose statement is relied on, naming them; ask for a personal hearing by video conferencing if the proceeding is faceless; and record each refusal or non-response in writing.
A refusal to supply material or to permit cross-examination, recorded at the assessment stage, converts a difficult merits appeal into a natural justice ground that can lead to the order being set aside outright. Conversely, if you never asked, the appellate authority is likely to hold that you had the opportunity and did not use it. The requests themselves cost nothing and must go in the first substantive reply.
Is a notice under s.143(2) a jurisdictional precondition, or merely a procedural step the Assessing Officer can skip?
I am an MES contractor and the department supplies me cement and steel at fixed rates. The Income-tax Officer added the value of that material to my cash receipts before applying a flat rate. Can he?
The Income-tax Officer examined witnesses behind my back and used their statements against me. Is that material evidence at all?
Can I go straight to the High Court against an income-tax order instead of filing the statutory appeal?
The officer rejected my books without giving reasons and added half my interest receipts as concealed income for five years. Can he do that?
Can the Assessing Officer estimate income on departmental material the assessee has never been shown?
The Assessing Officer has fastened buy-back tax under s.115QA on my company. Do I have a right of appeal, or must I go to the High Court by writ?
The High Court quashed my s.148 notice because the ward officer issued it instead of the faceless unit. Does that judgment still stand?
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