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Patna High Court Upholds Lower Court’s Dismissal of Public Interest Litigation filed against nominations made by district judge

Case title:  The Sikh Collective Vs The State of Bihar

Case no.:  800 of 2024

Dated on: 16th February 2024

Quorum:  HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE RAJIV ROY CAV JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

FACTS OF THE CASE

The writ petition is filed against the nomination made by the District Judge, Patna to the Prabandhak Committee, which is managing the affairs of Sri Takhat Harimandir Ji, Patna Saheb, Patna City. The writ petition is filed as a public interest petition. The petitioner is a Sikh Collective (Sikh) which is not stated to be registered as a society or association and in that circumstance it cannot be deemed to be a legal entity. Further, the respondents impleaded are the three nominees and none from the community even in a representative capacity.

ISSUES

  • Whether the applicant has locus standi to file the petition before this court?
  • Whether the court can invoke the extraordinary discretionary remedy under Article 226 of the Constitution of India?

LEGAL PROVISIONS

Article 226 of The Indian Constitution

Power of High Courts to issue certain writs: Notwithstanding anything in article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrantor and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

CONTENTIONS OF THE APPELLANT

The petitioner contends that the District Judge, Patna ought not to have made the three nominations before the election is over, since it is de hors and ultra vires the provisions of the Constitution and by-laws governing the formation of the Committee and would lead to frustrating the democratic process of election of the committee members. The petitioners are concerned with the management of the religious place and it cannot be said that the community which has interest in the affairs of the institution and also the management of the same is either marginalized or downtrodden, requiring this Court to invoke the extraordinary discretionary remedy under Article 226 of the Constitution of India, bypassing the other remedies available.

CONTENTIONS OF THE RESPONDENTS

The counsel contended that the Constitution and Bye-laws are produced at Annexure-1. The nomination made by the District Judge is in his ex officio capacity. Nomination is made under Clause 9 of Chapter IV and there are 15 members in the Managing Committee of which 14 are nominated by the various bodies; three being nominated by the District Judge. Three members are elected by the local Sikhs of Patna district and the remaining member is co-opted by the 14 members constituting the committee. Prima facie, we are of the opinion that there is nothing mandating the nomination to be done after the election. Further, none of the other existing committee members have been impleaded in the present writ petition.

 COURT’S ANALYSIS AND JUDGEMENT

The court did not find any reason to interfere with the orders of the District Judge, in a Public Interest Litigation and to invoke and exercise the extraordinary power under Article 226 of the Constitution of India, in public interest, in the above case; the grievance projected in which has to be agitated in an appropriate civil forum. Declining discretionary exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India, the court dismissed the writ petition. The court also made it clear that it has merely declined discretion and it does not validate the nomination which, if any individual or body is prejudiced with, will have to be agitated before the appropriate civil forum. When such proceedings are instituted, it would be for the forum approached to decide on the locus standi of the applicant and maintainability of such a proceeding; and if found inclined on these aspects, to decide on the merits.

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Judgement Reviewed by – Fathima Sara Sulaiman

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Rajasthan High Court Guidelines on Panchayat Official Transfers: Impact of Section 89(8A) of Panchayati Raj Act

Case title: Kera Ram VS. The State Of Rajasthan ORS.  

Case no : S.B. Civil Writ Petition No. 2909/2024

Order on: 30/04/2024

Qoram: HON’BLE MR. JUSTICE ARUN MONGA

Fact of the case:

The petitioner, Kera Ram, is currently serving as a Gram Sewak cum Village Development Officer at Panchayat Samiti, Sarnau. He was transferred to Panchayat Samiti, Bagora via an order dated 19.02.2024 issued by the Chief Executive Officer (CEO) of Zila Parishad, Jalore. A large number of panchayat officials, including Village Development Officers/Assistant Administrative Officers/Gram Sewak/LDC/Junior Assistants/Junior Technical Assistants/Gram Vikas Adhikari, have been transferred through various orders issued by the State Government, CEOs of respective districts, and other officials like BDOs/VDOs. The petitioner challenges the legality of these transfer orders, alleging violations of the Rajasthan Panchayati Raj Act, 1994, and the Rules framed thereunder. Kera Ram claimed that the Chief Executive Officer of the Zila Parishad and other officials did not follow the proper procedures and guidelines for transferring employees within the Panchayat system.

Issues Framed by the Court

  • Does the omission to mention a specific location of Gram Panchayat for a Panchayat Samiti official’s new duty station invalidate a transfer order?
  • Is an appointment by transfer without consulting the Pradhans or Pramukhs of the involved Panchayat Samiti or Zila Parishad legally valid?
  • Can the Chief Executive Officer of a Zila Parishad independently issue a transfer order within the Zila Parishad?
  • Are BDOs/VDOs authorized to independently transfer Panchayat officials within the Panchayat Samiti?
  • Is the recommendation of the District Administration and Establishment Committee necessary for the transfer of an employee within a Panchayat Samiti or Zila Parishad by the Chief Executive Officer of a Zila Parishad?
  • What is the legislative intent and scope of the State’s power under the non-obstante clause in Section 89(8A) of the Panchayat Raj Act, 1994, as amended by Act No. 23/1994 in Rajasthan?

Legal provisions:

Constitution of India:

Article 243A – Gram Sabha: Empowers the Gram Sabha to exercise powers and perform functions at the village level as determined by the State Legislature.

Article 243B – Constitution of Panchayats: Mandates the constitution of Panchayats at the village, intermediate, and district levels in every State, except those with populations below 20 lakhs, where intermediate level Panchayats may not be constituted.

Article 243C – Composition of Panchayats: The composition of Panchayats shall be determined by the Legislature of the State.

Article 243G – Powers, Authority, and Responsibilities of Panchayats: Empowers the Legislature of a State to endow Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government.

Article 243H – Powers to Impose Taxes by, and Funds of, the Panchayats: The State Legislature may authorize Panchayats to levy, collect, and appropriate taxes, duties, tolls, and fees.

Panchayati Raj Act, 1994:

Section 9 – Constitution of Panchayats

Section 10 – Creation of Panchayat Samitis

Section 51 – Functions of Panchayat Samiti

Section 89(8A) – Transfer of Employees

Rule 289: Procedures for transfer within a district under Panchayat Samiti or Zila Parishad

Contentions of Appellant:

The petitioner argues that the CEO of Zila Parishad is not legally competent to pass a transfer order for a Village Development Officer as per the provisions of the Rajasthan Panchayati Raj Act, 1994, or the Rules framed thereunder. The transfer order lacks prior approval or consent from the Samiti through its Pradhan, which is mandatory under Section 89(8)(ii) of the Act of 1994. The District Establishment Committee (DEC) of Zila Parishad is the competent authority to pass transfer orders, which should be based on the request of the Panchayat Samiti through its Pradhan. Petitioner also argued that the transfer does not reflect any administrative exigency as no one has been posted in the petitioner’s place. The transfer order does not specify the particular Gram Panchayat to which the petitioner should report, leaving him in a state of suspense. The transfer orders passed by the State suffer from non-application of mind as many officials have been transferred without being assigned any specific place of posting. Transfer protocols must be followed to avoid misuse of power, including recommendations from the DEC and prior consultation with the Pradhan or Pramukh. Some transfer orders were passed during a period when there was an absolute ban on transfers, violating administrative instructions issued by the Chief Secretary.

Contentions of Respondents:

The Respondent here is State Government retains exclusive right to transfer Panchayati Raj officials anywhere in the State. The State instruct CEOs or BDOs to carry out such transfers as per Rules 89 and 290. The State’s transfer orders merely select the officials to be transferred, leaving the task of assigning specific transferred locations to the CEOs. Under sub-section 8A of Section 89, the State has the power to transfer any panchayat officials without requiring prior consultation with the Pradhan or Pramukh or a recommendation from the DEC. Consultation with the Pradhan or Pramukh is directory, not mandatory. The term “consultation” implies soliciting input rather than requiring consent. Section 89(8)(ii) differentiates between fresh appointments and routine postings. The sub-section concerns new appointments, not routine postings. Most transfer orders specify the place of posting, and only a few exceptions exist where this was not mentioned, thus not warranting interference by the court.

Court analysis& Judgement:

The court emphasized the constitutional direction for decentralized governance and the empowerment of Panchayati Raj institutions (PRIs) to manage local affairs autonomously. The 73rd Constitutional Amendment supports this decentralized system. The court pointed out that while the State Government has oversight powers, it should not interfere excessively in the routine administrative affairs of PRIs, thereby respecting their autonomy and the constitutional scheme of self-governance. The court stressed the importance of following procedural norms for transfers, including the necessity of consulting relevant Panchayat officials (Pradhans or Pramukhs) to maintain transparency and accountability. The court examined the powers under Section 89(8A) of the Panchayat Raj Act, which allows the State Government to transfer Panchayati Raj officials without following other procedural safeguards. However, the court maintained that this power should be exercised sparingly and only in cases of administrative exigency. The court repeated that adherence to established judicial precedents could avoid needless litigation.

The court framed specific guidelines for the transfer of Panchayati Raj officials to ensure clarity and prevent arbitrary decisions, this are; Panchayat officials recruited for district-cadre posts should not be transferred outside their respective districts routinely, except where permissible under the Act and Rules. Transfers must be made only after consulting the Pradhan of the Panchayat Samiti. Transfers within a Zilla Parishad require consultation with the Pramukh of the Zilla Parishad. The State can make transfers without consulting the Pradhan or the Pramukh. The State has the authority to transfer Panchayat officials within or between Panchayat Samitis within the same district. The State can transfer officials from one Zilla Parishad to another, from a Panchayat Samiti to a Zilla Parishad, or within the same Zilla Parishad or Panchayat Samiti, with or without consultation of Pradhan or Pramukh. Consultation is not required for transfers made under this section, which gives the State Government the power to stay or cancel transfer orders made under Section 89(8) or associated rules. The Chief Executive Officer/Vikas Adhikari must execute transfer orders passed by the State Government. They do not have any independent power to pass transfer orders. The Committee is empowered to exercise transfer powers in accordance with Government policies and directions, ensuring that the Panchayati Raj institutions’ constitutional status is upheld. Inter-district transfer orders by other Departments must obtain consent from the Panchayati Raj department. ‘Consent’ implies a voluntary, informed decision, and must be explicitly stated through a conscious decision-making process. The court allowed the writ petitions, set aside the impugned transfer orders, and directed the respondents to pass fresh orders if necessary, based on administrative exigencies and within the parameters of the guidelines issued by the court.

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Judgement Reviewed By- Antara Ghosh

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Delhi HC Grants Waiver of Costs After Petitioner Tendered Unconditional Apology

Case Title: We, The People of India vs. Union of India & Ors.

Case Number: W.P.(CRL) 1203/2024 (Writ Petition (Criminal) likely)

Date of Decision: May 20, 2024

Quorum: Hon’ble The Acting Chief Justice & Hon’ble Ms. Justice Manmeet Pritam Singh Arora

FACTS OF THE CASE

-The case, W.P.(CRL) 1203/2024, involves a writ petition filed by a party identifying themselves as “WE, THE PEOPLE OF INDIA” against the Union of India and others. The petitioner is represented by Mr. Karan Pal Singh, Advocate, while various respondents, including the Union of India, are represented by different legal representatives.

-On May 20, 2024, the Acting Chief Justice and Ms. Justice Manmeet Pritam Singh Arora issued a judgment concerning two miscellaneous applications: CRL.M.A. 15552/2024 and CRL.M.A. 15551/2024.

-In CRL.M.A. 15552/2024, the petitioner sought exemption from certain requirements, which was granted by the court, subject to all just exceptions.

-CRL.M.A. 15551/2024 was filed seeking waiver of costs amounting to Rs. 75,000/- imposed on the petitioner by the court in its final order/judgment dated April 22, 2024. The petitioner tendered an unconditional apology for their actions before the court and expressed their understanding of the judicial system and laws of the land after reading the final order. They acknowledged their mistake and tendered the apology. The petitioner, described as a student from the lower-middle class fully dependent on their parents, stated their inability to bear the imposed costs.

-After considering the petitioner’s apology and their financial circumstances, the court waived the imposed costs of Rs. 75,000/-. However, the court directed that if the petitioner or its deponent filed any fresh proceedings in any court, they must annex a copy of the judgment dated April 22, 2024, and a copy of this order.

-Overall, the case revolves around the petitioner seeking exemption and waiver of costs, citing personal and financial circumstances as mitigating factors.

ISSUES

  1. Whether the petitioner’s application seeking waiver of costs of Rs. 75,000 imposed by the court should be granted.
  2. Whether the petitioner’s unconditional apology and acknowledgment of mistake warrant a waiver of the imposed costs.
  3. Whether the petitioner’s financial circumstances, being a student from a lower middle-class background, justify the waiver of costs.
  4. Whether the court’s decision to waive the costs is contingent upon the petitioner and/or its deponent refraining from filing any fresh proceedings in any court.

LEGAL PROVISIONS

  1. Section 151 of the Code of Civil Procedure, 1908: This section empowers the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.
  2. Judicial discretion: The court has the discretion to waive costs or impose penalties based on the circumstances of the case and the conduct of the parties involved.
  3. Precedent: The court may consider past judgments and legal principles established in similar cases while deciding whether to grant exemption from costs.

CONTENTIONS OF THE APPELLANT

-The contentions of the appellant, identified as “WE, THE PEOPLE OF INDIA,” in the case W.P.(CRL) 1203/2024 are not explicitly mentioned in the provided text. However, based on the nature of the case and the fact that the appellant is seeking exemption from certain requirements and waiver of costs, we can infer some possible contentions.  The appellant may contend that there was a violation of their legal rights or the law by the respondents (Union of India and others). This violation could be related to constitutional rights, statutory provisions, or any other legal obligations. The appellant might argue that the judgement dated April 22, 2024, imposing a cost of Rs. 75,000/- was unreasonable or unjustified. They could claim that the reasons provided by the court for imposing the cost were unfounded or that the amount of the cost was excessive given their circumstances.The appellant could assert that there was an error in the legal analysis conducted by the court in its previous judgement. They might argue that the court misinterpreted the law or applied it incorrectly to the facts of the case. As indicated in the text, the appellant is described as a student from the lower-middle class, dependent on their parents, and unable to afford the imposed costs. Therefore, one of their contentions could be based on their financial circumstances, arguing that they should be exempt from the costs due to their inability to pay.  The appellant may also contend that they have acknowledged their mistake, tendered an unconditional apology, and demonstrated an understanding of the judicial system and laws of the land. Therefore, they might request leniency from the court in the form of waiving the imposed costs.

CONTENTIONS OF THE RESPONDENT

-The text provided doesn’t explicitly outline the contentions of the respondents, namely the Union of India and others. However, based on the context provided, we can infer some potential contentions. The respondents may argue that the costs imposed by the court in its previous judgement were justified based on the actions or behaviour of the appellant. They might contend that the appellant’s conduct warranted the imposition of costs as a deterrent against frivolous litigation or inappropriate behaviour in court.  The respondents might assert that they have complied with all legal requirements and obligations in the case. They could argue that the actions taken by them were in accordance with the law and that there was no basis for the appellant’s claims or requests. The respondents could oppose the appellant’s request for waiver of costs, arguing that the appellant has not provided sufficient grounds for such relief. They might contend that the appellant’s financial circumstances or apology are not relevant factors in determining whether costs should be waived. The respondents may seek to uphold the previous judgement of the court, which imposed costs on the appellant. They could argue that the court’s decision was appropriate given the circumstances of the case and the appellant’s actions. The respondents might request that the court ensure that the appellant complies with any conditions set forth in the judgement, such as attaching copies of the judgement to any future legal proceedings filed by the appellant. These potential contentions suggest that the respondents are likely to defend the previous judgement of the court and oppose the appellant’s request for waiver of costs. They may emphasise the importance of upholding legal principles and ensuring accountability in the judicial process.

 

COURT’S ANALYSIS AND JUDGEMENT

– In the case of W.P.(CRL) 1203/2024, the petitioner, represented by Mr. Karan Pal Singh, Advocate, filed an application seeking waiver of costs amounting to Rs. 75,000 imposed by the court in its final order/judgement dated 22nd April, 2024. The petitioner submitted the application under Section 151 of the Code of Civil Procedure, 1908, asserting that he was tendering an unconditional apology for his actions before the court. He claimed to have gained a better understanding of the judicial system and laws of the land after reviewing the final order. Additionally, the petitioner, described as a student, emphasised his financial dependency on his parents, stating that he belonged to the lower middle class and was incapable of bearing the imposed costs.

– The court, presided over by Hon’ble Acting Chief Justice and Hon’ble Ms. Justice Manmeet Pritam Singh Arora, heard the matter and considered the submissions made by the petitioner. It noted that the costs were initially imposed due to the untenable legal submissions and contrary facts presented in the petitioner’s writ petition. The court, recognizing the necessity for a course correction, imposed the costs. However, in light of the petitioner’s acknowledgment of his mistake and the tendering of an unconditional apology, the court exercised its discretion to waive the imposed costs amounting to Rs. 75,000.

– While granting the waiver, the court issued a directive that if the petitioner or its deponent were to file any fresh proceedings in any court, they must annex a copy of the judgement dated 22nd April, 2024, along with a copy of the present order. This directive serves as a precautionary measure to ensure transparency and adherence to legal principles in any future legal proceedings initiated by the petitioner or its representative.

-The judgement, delivered on May 20, 2024, demonstrates the court’s careful consideration of the petitioner’s apology, financial circumstances, and the necessity for upholding legal principles while maintaining fairness and justice. It reflects the court’s exercise of judicial discretion in balancing the interests of the parties involved and ensuring equitable outcomes in the administration of justice.

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Judgement Reviewed by – Shruti Gattani

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Mandatory for the IT Department to comply with the CBDT’s Digital Evidence Investigation Manual while conducting search and seizure: Madras High Court

Case title – W.P.No.9753, 9757 and 9761 of 2023 – M/s.Saravana Selvarathnam Retails Pvt Ltd, M/s.Shri Rathna Akshaya Estates Pvt Ltd & Ors V/S The Commissioner of Income Tax, The Assistant Commissioner of IT, The Deputy Director of IT

W.P.No.11176 of 2023 – M/s.Saravana Selvarathnam Trading & Manufacturing Pvt Ltd V/S The Assistant Commissioner of Income Tax, The Deputy Director of Income Tax

Case no. – W.P.Nos.9753, 9757, 9761 & 11176 of 2023 and W.M.P.Nos.11043, 9838, 9842 & 11041 of 2023

Decision on – February 23, 2024

Quoram – Justice Krishnan Ramaswamy

Facts of the case                          

The case of the petitioner is that the respondents-Department had conducted a sudden search under Section 132 of the Income Tax Act, 1961 on different dates. In the said searches, the 2nd respondent had seized the electronic data.

In both the proceedings the Show Cause Notices were issued by the respondent and the responses on the same was filed by the petitioner. Subsequently, the assessment orders were passed on the subject matter of both the proceedings.

In light of such circumstances, the petitioner had made several representations to the respondents for the purpose of getting copies of the materials collected from their premises. The petitioner also provided the additional reply, wherein they had categorically requested the respondents to provide the additional documents collected by them, however the same was not been provided.

At this juncture, the respondents had passed the impugned assessment orders in both the proceedings. However, in all these cases, neither the additional documents nor the opportunity of personal hearing was provided to the petitioner before passing the orders.

Issues

The Petitioner in the first proceedings filed the writ petitions Nos.9753, 9757 and 9761 of 2023 challenging the admissibility of evidence against the orders of the respondents. They sought to declare that the seizure of the .txt files by the 2nd respondent from an undisclosed location without any valid search warrant and without following the guidelines issued by the CBDT is not in accordance with law and therefore inadmissible in evidence.

Whereas, in the second proceedings the petitioner filed the writ petitions No.11176 of 2023 challenging the orders of the respondents that were passed without hearing the petitioner which violates the principles of natural justice.

Submission of the Parties

The Counsel appearing on behalf of the Petitioner submitted that the search and seizure was conducted and the assessment orders were passed in a hasty manner. Further, at the time of search and in the event of collection of electronic data, the respondents failed to comply with the procedures laid down in the Digital Evidence Investigation Manual, which is issued in terms of Section 119 of the Act by CBDT. He contended that the guidelines were framed by CBDT in order to avoid the invalidation of evidences collected by the Department and thus it was mandatory for them follow it.

He also submitted that the petitioner was not given an opportunity to be heard while passing the orders which led to the violation of principles of natural justice.

The Counsel submits that this raises the issue of suspiciousness regarding the manner in which the respondents had collected and preserved the data. He contends that it is the duty of the respondents to corroborate the evidences. Even if it is the oral evidence of any person, they should have allowed the petitioner to cross- examine the said person and must have produced the evidences accordingly. But however, the Counsel submits that the respondents have defaulted in that too.

The Counsel appearing on behalf of the Respondents stated that the writ of declaration regarding the evidentiary value is not maintainable. He contended that the assessment is completed and appeal is pending before the Appellate Authority and hence, petitioner has to agitate all the issues before the Appellate Authority.

The Counsel thus, submitted that the admissibility, nature of evidence and the manner of proof cannot be questioned in the writ petitions. The Counsel further contended that the Manual issued by the CBDT was only optional for the Department to follow and not mandatory.

Court’s Analysis and Judgement

The Court on perusal of the documents on record observed that despite several representations made by the petitioner before the respondents imploring for the copy of the documents and other data collected from their premise of the petitioner, the respondents failed to provide any of the documents. Moreover, the Court observed the lethargic and irresponsible behaviour on the part of the respondents in misplacing the documents, while it was their duty to collect and preserve the evidences as per the procedure laid down in the said Manual.

The Court while pondering upon the issue of maintainability noted that the present writ petitions clearly falls within the purview of the exemptions provided by the Apex Court in the Chabbil Dass case and therefore, upheld the maintainability of the instant writ petitions.

The Court further noted that the respondents while passing the assessment order considered the sale value of 25th December and it throughout the year in a mechanical manner. The Covid pandemic where there was complete closure of shops was not taken into consideration. The Court pointed out such acts to be totally arbitrary and lacks any corroborative evidences. Hence, reliance on such data and evidences is unjustified.

The Court noted that the collection of materials and preservation of the same at the place of the respondents is entirely suspicious and assessments were made by virtue of guess work and without any valid evidence in the eye of law.

The Court asserted that in the present case, necessary documents have not been produced and the assessment orders were passed hurriedly within a short span of 10 days and 30 days. Thus, the impugned order passed by the 2nd respondent is in a serious flaw, which makes the orders nullity inasmuch as it amounted to violation of principles of natural justice because of which the Assessee was adversely affected.

The Court is of the considered view that since the respondents had not followed the procedure under the said Manual, no corroborative evidence was placed on record and hence, the said search and seizure is against the law and ab initio bad.

The Court further noted that neither the opportunity of personal hearing nor the opportunity to cross-examine the witnesses was provided to the petitioner. Therefore, it light of the above defaults the Court set aside the three impugned assessment orders and remitted the matter back to the concerned authority for re-consideration.

The Madras High Court has held that it is mandatory for the income tax department to follow the Digital Evidence Investigation Manual issued by the Central Board of Direct Taxes (CBDT) while conducting searches and seizing electronic evidence.

The Court also issued certain directions to the Respondents in the matter-

  • The 2nd respondent is directed to provide all the documents relied upon by them in the Show Cause Notice as requested by the petitioner.
  • If any oral/documentary evidence is relied upon to corroborate the electronic data, the 2nd respondent is directed to allow the Assessee to cross-examine the witnesses.
  • After completion of the cross-examination and before passing the final assessment order, the 2nd respondent is directed to provide an opportunity of personal hearing to the petitioner to put forth their case before the Assessing Officer;
  • The AO is directed to pass the assessment order in detail taking into consideration of the deposition of the witnesses, during the cross-examination, whose statements are relied upon by the 2nd respondent to corroborate the electronic data collected by them.
  • The Assessing Officer is directed to follow the above procedures in the event of issuance of any further show cause notices in connection with the present search and seizure relating to other assessment years.

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Judgement Reviewed by – Keerthi K

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