OM PRAKASH, C J Heard counsel for the parties. 2. By this application made under s. 256(2) of the IT Act, 1960, the assessee requires us to direct the Tribunal to refer the following questions for the opinion of this Court:
"(i) Whether, on the facts and in the circumstances of the case, is the Tribunal right in law in holding that the evidence recorded from Sivaswamy in the assessment proceedings could well be relied on, as in the later penalty proceedings he was made available to the assessee for cross-examination?
(ii) Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in holding that penalty proceedings is a part and parcel of the quantum proceedings and that the evidence later adduced in penalty proceedings is open to be taken into account for validating the inadmissible evidence relied on in the earlier assessment proceedings?
(iii) Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in testing on the check stone of probabilities the evidence given by Sivaswamy both in the assessment and the penalty proceedings taken together?
(iv) Has not the reliance on the evidence of Sivaswamy in both the proceedings together vitiated the findings given against the assessee?
3. The submission of learned counsel for the assessee is that the AO relied on a statement of one Sivaswamy, who was a partner in M/s Yessern Fabrics, Tirupur, without giving an opportunity of cross. examining him and that vitiated the assessment.
4. We have carefully gone through the assessment order. In paragraph 34 of the said order, it is clearly stated that vide letter dt. 21st March, 1988, the assessee was informed in detail about the statement of Sivaswamy being recorded, which was intended to be relied on against it. The assessee though replied the said letter by letter dt. 25th March, 1988, no request was made by it to the AO to produce Sivaswamy for cross-examination. On these facts, it would not be open to the assessee to contend that the assessment was vitiated because an opportunity to cross-examine Sivaswamy was not given. When the AO duly informed the assessee about the statement of Sivaswamy, it was for the assessee to request the AO to produce Sivaswamy for cross-examination. But no such request was made by the assessee.
5. On these facts, we are of the view that no question of law arises from the findings of fact, recorded by the Tribunal.
The application is, accordingly, rejected.