COMMISSIONER OF INCOME vs. SHRI M J BALACHANDER

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ITA/217/2013HC KarnatakaKAHC01042985201321 February 2023Bench: P.S.DINESH KUMAR,RAMACHANDRA D. HUDDAR3 pages
AI SummaryRemanded

What did the High Court hold?

The High Court of Karnataka disposed of the appeal. The Court noted the submission by the Respondent's counsel that the appeal does not survive for consideration because the substantive assessment in the case of M/s. Venkatesha Education Society was settled under the Vivad se Vishwas scheme, and the Revenue's appeals in that matter were dismissed by the High Court. It was further submitted that the Respondent's assessment was protective, and the Assessing Officer was required to pass a rectification order as per Circular No. 9/2020, a submission not disputed by the Revenue's counsel. Consequently, the appeal was disposed of with a direction to the Assessing Officer to pass the rectification order. No costs were awarded.

What were the facts?

The Commissioner of Income Tax-III and Deputy Commissioner of Income Tax (the Revenue) filed an appeal before the High Court of Karnataka against an order dated 21.12.2012 passed by the Income Tax Appellate Tribunal (ITAT), 'B' Bench, Bangalore, in ITA Nos. 91/BANG/2012 and 96/BANG/2012. The appeal was filed under Section 260-A of the Income Tax Act, 1961. The Respondent, Shri M.J. Balachander, was assessed on a protective basis. The Revenue had made similar additions on a substantive basis in the hands of M/s. Venkatesha Education Society, against which the Revenue had filed appeals before the High Court. M/s. Venkatesha Education Society had paid the disputed tax under the Vivad se Vishwas scheme. The High Court had dismissed the appeals filed by the Revenue in the case of M/s. Venkatesha Education Society.

What were the issues?

1. Whether the present appeal filed by the Revenue survives for consideration, given that the substantive assessment in the case of M/s. Venkatesha Education Society has been settled under the Vivad se Vishwas scheme and the High Court has dismissed the Revenue's appeals in that matter. Assessee's Contention: The Respondent (assessee) argued that the appeal does not survive as the substantive assessment in the case of M/s. Venkatesha Education Society was settled under the Vivad se Vishwas scheme, and the High Court had dismissed the Revenue's appeals concerning that assessee. The Respondent further contended that since the assessment in their hands was protective, the Assessing Officer is required to pass a rectification order as per FAQ No. 35 to Circular No. 9/2020, and this position was not disputed by the Revenue. Revenue's Contention: The Revenue did not dispute the submissions made by the Respondent's counsel regarding the settlement of the substantive assessment and the consequent requirement for a rectification order.

Which sections of the Income-tax Act were involved?

Section 260-A

AI-generated summary — verify with the full judgment below

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ITA No. 217/2013

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF FEBRUARY, 2023 PRESENT THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR AND THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR INCOME TAX APPEAL NO. 217 OF 2013

BETWEEN:

COMMISSIONER OF INCOME TAX-III CENTRAL REVENUE BUILDINGS QUEENS ROAD BANGALORE-560 001

2.

DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-1(2) BANGALORE …APPELLANTS

(BY SHRI. E.I. SANMATHI, STANDING COUNSEL)

AND:

SHRI. M.J. BALACHANDER 16, 1ST MAIN ROAD VASANTH NAGAR BANGALORE …RESPONDENT

(BY SHRI. S. SHARATH, ADVOCATE)

THIS ITA IS FILED UNDER SEC.260-A OF I.T. ACT, 1961, ARISING OUT OF ORDER DATED 21.12.2012 PASSED IN ITA NO.91/BANG/2012 AND ITA NO.96/BANG/2012 PRAYING TO FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED THEREIN AND SET ASIDE THE APPELLATE ORDER OF THE ITAT, 'B' BENCH, BANGALORE IN APPEAL PROCEEDINGS ITA NO.91/BANG/2012 AND ITA NO.96/BANG/2012 DATED 21.12.2012, AS SOUGHT FOR IN THIS APPEAL.

Digitally signed by ANUSHA V Location: HIGH COURT OF KARNATAKA

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ITA No. 217/2013

THIS ITA, COMING ON FOR HEARING, THIS DAY, P.S.DINESH KUMAR, J., DELIVERED THE FOLLOWING:

JUDGMENT

Shri Sharath, learned advocate appearing for the respondent has filed a memo of even date and it reads as follows: “It is submitted that the Respondent in the above Appeals were assessed on protective basis. The department made very same additions on substantive basis in the hands of M/s. Venkatesha Education Society, where the department was in Appeal before this Hon’ble Court in ITA Nos. 248/2013, 254/2013, 255/2013, 257/2013, 258/2013. The Assessee M/s. Venkatesha Education Society paid the disputed tax under vivad se vishwas scheme.

This Hon’ble Court dismissed the department appeals of the Assessee viz., M/s. Venkatesh Education Society by order dated 10.01.2023. Thus, the Respondent Assessee being assessed on protective basis, in view of FAQ No.35 to Circular No.9/2020 the department has to pass the rectification order deleting the protective additions.

In this regard the Respondent prays before this Hon’ble Court to dismiss the Appeals of the department. ”

2.

Shri Sharath submitted that other assessee, M/s. Venkatesha Education Society, has paid tax under vivad se vishwas scheme. Therefore, this appeal does not survive for consideration. He further submitted that

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ITA No. 217/2013

this appeal arises out of protective assessment and the only thing remains to be done by the AO1 is to pass rectification order as per question No.25 in Circular No.9/2020. The same is not disputed by Shri E.I.Sanmathi.

3.

In view of the above, this appeal stands disposed of with a direction to the AO to pass rectification order.

No costs.

Sd/- JUDGE

Sd/- JUDGE

1 Assessing Officer

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