Sri. M.R.Anandaram (Huf) vs The Assistant Commissioner Of ...
2021 Latest Caselaw 1419 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 27TH DAY OF JANUARY 2021

                          PRESENT

        THE HON'BLE MR. JUSTICE ALOK ARADHE

                            AND

  THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY

                   I.T.A. NO.452 OF 2016
BETWEEN:

SRI. M.R. ANANDARAM (HUF)
REP. BY KARTHA
SRI. M.R. ANANDARAM
GOKULA HOUSE
GOKULA, MATHIKERE
BANGALORE-560054.
                                             ... APPELLANT
(BY SRI. A. SHANKAR, SR. COUNESL FOR
    SRI. M. LAVA, ADV.,)

AND:

THE ASSISTANT COMMISSIONER OF INCOME TAX
CIRCLE 6 (3)(1), BMTC BUILDING
80 FEET ROAD, KORAMANGALA
BANGALORE-560095.
                                           ... RESPONDENT
(BY SRI. E.I. SANMATHI, ADV.)
                             ---
      THIS I.T.A. IS FILED UNDER SEC. 260-A OF INCOME TAX
ACT 1961, ARISING OUT OF ORDER DATED 27.05.2016 PASSED
IN C.O. NO.220/BANG/2015 (IN ITA NO.1169/BANG/2015) FOR
THE ASSESSMENT YEAR 2007-08, PRAYING TO:
      (i) FORMULATE THE SUBSTANTIAL QUESTION OF LAW AS
STATED ABOVE AND ANSWER THE SAME IN FAVOUR OF THE
APPELLANT.
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     (ii) ALLOW THE APPEAL AND SET ASIDE THE FINDINGS TO
THE EXTENT AGAINST THE APPELLANT IN THE ORDER PASSED BY
THE ITAT IN CO NO.220/BANG/2015 (IN ITA 1169/BANG/2015)
DATED 27.05.2016 FOR THE ASSESSMENT YEAR 2007-08 VIDE
ANNEXURE-A.
     (iii) PASS SUCH OTHER ORDERS, AS THIS HON'BLE COURT
DEEMS FIT AND PROPER TO MEET THE ENDS OF JUSTICE.

     THIS I.T.A. COMING ON FOR HEARING,          THIS   DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:


                      JUDGMENT

This appeal under Section 260A of the Income Tax

Act, 1961 (hereinafter referred to as the Act for short)

has been preferred by the assessee. The subject matter

of the appeal pertains to the Assessment year 2007-08.

The appeal was admitted by a bench of this Court vide

order dated 22.11.2017 on the following substantial

questions of law:

(i) Whether the Tribunal was justified in law in stating that there are no effective grounds other than supporting the order of the CIT(A) in the cross objection filed by the appellant which is contrary to the and grounds raised before the Tribunal and consequently perverse on the facts and circumstances of the case.

                   (ii)        Whether the Tribunal ought
           to     have        held    that     the       mandatory

conditions to assume jurisdiction under section 148 does not exist and consequently ought to have also quashed the reassessment proceedings on the facts of the case.

(iii) Whether the Tribunal was justified in law in not adjudicating the legal ground of reopening which goes to the root of the matter on the facts and circumstances of the case.

(iv) Whether the Tribunal in law ought to have held that as no notice under section 143(2) of the act has been issued in time, consequently the order of assessment is bad in law and without jurisdiction and liable to be cancelled on the facts of the case.

2. Facts leading to filing of this appeal briefly

stated are that an assessee is an individual (HUF) and

had filed his original return of income for the

Assessment Year 2007-08 on 01.11.2007 declaring an

income of Rs.5,26,710/-. The assessee subsequently

filed a revised return of income on 31.03.2009 declaring

the agricultural income of Rs.15,00,000/- in addition to

the income already declared in the original return of

income. Thereafter, a notice under Section 148 dated

28.11.2011 was issued. The appellant thereupon filed a

detailed response on 23.12.2011 stating that return of

income filed on 01.11.2007 and 31.03.2009 in response

to the notice issued under Section 148 of the Act be

treated as response. The Assessing Officer passed an

order under Section 143(3) read with Section 147 of the

Act on 28.03.2013.

2. The assessee thereupon filed an appeal before

the Commissioner of Income Tax (Appeals), who by an

order dated 26.05.2015 partly allowed the appeal. The

revenue thereupon filed an appeal before the Income

Tax Appellate Tribunal (hereinafter referred to as 'the

Tribunal' for short). The assessee filed cross-objection

against the findings contained in the order passed by

the Commissioner of Income Tax (Appeals). The

Tribunal, by common order dated 27.05.2016, dismissed

the appeal preferred by the revenue as well as the

cross-objection filed by the assessee. In the aforesaid

factual background, this appeal has been filed.

3. Learned Senior counsel for the assessee

submitted that an order of assessment was passed on

27.11.2009 under Section 143(3) of the Act.

Thereafter, a notice under Section 148 of the Act was

issued on 28.11.2011. The reasons were communicated

by the Assessing Officer to the assessee on 31.01.2012.

Thereafter, notice under Section 143(2) of the Act was

issued on 28.02.2013 which was barred by limitation

and the same ought to have been issued before

30.09.2012. However, the aforesaid aspect of the

matter has neither been considered by the

Commissioner of Income Tax (Appeals) nor by the

Tribunal.

4. Learned counsel for the revenue was unable to

point out from the order passed either by the

Commissioner of Income Tax (Appeals) or by the

Tribunal that the issue whether the notice under Section

143(2) of the Act issued to the assessee was barred by

limitation was adjudicated.

5. In view of the aforesaid submission and taking

into account the fact that the issue with regard to the

fact whether the notice under Section 143(2) of the Act

to the assessee was barred by limitation and the same

ought to have been issued before 30.09.2012, has not

been adjudicated either by the Commissioner of Income

Tax (Appeals) or by the Tribunal, in the facts and

circumstances of the case, it is not necessary for us to

deal with the substantial questions of law framed in this

appeal. The impugned order passed by the Tribunal

dated 27.05.2016, is hereby quashed and the matter is

remitted to the Tribunal to adjudicate the issue whether

the notice issued under Section 143(2) of the Act dated

28.02.2013, to the assessee is barred by limitation and

is contrary to provisions of the Act. Needless to state

that the Tribunal itself shall decide the issue within a

period of two months from the date of receipt of

certified copy of the order passed today. The parties

shall be at liberty to raise all legal contentions with

regard to the aforesaid issue.

In the result, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE ss