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Income Tax Appellate Tribunal, BENGALURU
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HC-KAR NC: 2025:KHC:43164-DB ITA No. 81 of 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF OCTOBER, 2025 PRESENT THE HON'BLE MR. JUSTICE B M SHYAM PRASAD AND THE HON'BLE MR. JUSTICE T.M.NADAF INCOME TAX APPEAL NO. 81 OF 2025
BETWEEN:
M/S. MFAR HOLDINGS PVT LTD NO.3, LAVELLE ROAD, BENGALURU - 560 001.
(REPRESENTED ITS BY DIRECTOR, SRI.YENEPOYA MOIDEEN RIZWAN, S/O. YENEPOYA ABDULLA KUNHI, AGED ABOUT 52 YEARS (INCORPORATED UNDER COMPANIES ACT, 1956)
…APPELLANT (BY SRI. TATA KRISHNA.,ADVOCATE)
AND:
THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 4(1)(1) (CURRENT JURISDICTION IN RESPECT OF ORDER PASSED BY DCIT,
Digitally Signed by REKHA R Location : High Court of Karnataka
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CENTRAL CIRCLE 1(4)) CR BUILDING, NO 1, QUEENS ROAD BENGALURU 560 001.
…RESPONDENT (BY SRI.Y.V. RAVIRAJ., ADVOCATE)
THE INCOME TAX APPEAL IS FILED UNDER SEC. 260-A OF INCOME TAX ACT 1961, PRAYING TO ALLOW THE APPEAL AND SET-ASIDE THE IMPUGNED COMMON ORDER OF THE INCOME TAX APPELLATE TRIBUNAL, BENGALURU A BENCH IN ITA NOS.1670 AND 2089/BANG/2024, DATED 11.12.2024 FOR THE AY 2006-07 AS ENCLOSED IN ANNEXURE - A.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE B M SHYAM PRASAD and HON'BLE MR. JUSTICE T.M.NADAF
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ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE B M SHYAM PRASAD)
The assessee is in appeal against the common order dated 11.12.2024 [Annexure-A] in ITA Nos.1670 & 2089/Bang/2024 on the file of the Income Tax Appellate Tribunal 'A' Bench, Bengaluru [for short, 'the Tribunal'], and the appeal is predicated on the following substantial question of law: "Whether the Tribunal is justified in law in dismissing these appeals refusing to condone the delay, and whether the Tribunal should have decided the appeal in ITA No.2089/2024 on merits".
Sri K K Chythanya, the learned Senior counsel for the appellant, and Sri Y.V. Raviraj, the learned Senior Standing Counsel for the Revenue, are heard for disposal of this appeal considering the afore substantial question of law.
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The question as afore is presented for consideration in the light of the following undisputed facts, and these facts apply to the assessment year 2006-07. The scrutiny assessment proceedings are begun under Section 144(3) of the Income Tax Act, 1961 [for short, 'the IT Act'] resulting in certain disallowances vide the assessment order dated 30.12.2008. A search is conducted in the premises of a third person on 20.02.2009 resulting in the proceedings under Section 153C read with Section 143(3) of the IT Act and culminating in the assessment order dated 30.12.2010. This assessment order under Section 153C read with Section 143(3) of the IT Act is a reiteration of disallowance in the scrutiny assessment order dated 30.12.2008. 3. The appellant has filed an appeal against the order on 30.12.2008 in ITA No.517/CIT(A)VI/2008-09 [Annexure-E]. This appeal is dismissed on 28.03.2013 observing that the
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impugned scrutiny assessment order dated 30.12.2008 has merged with the assessment order dated 30.12.2010 under Section 153C read with Section 143(3) of the IT Act. The appellant, in the meantime, had called in question the assessment order dated 30.12.2010 under Section 153C read with Section 143(3) of the IT Act in the appeal in No. CIT(A)-11/BNG/Tr.10103/2010-11.
This appeal in No. CIT(A)- 11/BNG/Tr.10103/2010-11 is rejected by the order dated 02.02.2022 observing that the appellant's grievance as against disallowance must be decided in any appeal that is filed as against the scrutiny assessment order dated 30.12.2008 while also observing that the appellant's appeal as against such order dated 30.12.2008 could not have been dismissed on the ground that such order has merged with the assessment order dated 30.12.2010 under Section 153C read with Section 143(3) of the IT Act.
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HC-KAR NC: 2025:KHC:43164-DB ITA No. 81 of 2025
The appellant contends that it was not aware of the order dated 02.02.2022 No. CIT(A)- 11/BNG/Tr.10103/2010-11 until it received an email communication from its consultant on 08.03.2024 and that the appeal in ITA No.1670/2024 is filed immediately thereafter calling in question this order dated 02.02.2022 setting forth the afore reasons as sufficient cause for condonation of delay. It is during the pendency of this appeal, the appellant, as is stated before this Court in reiteration of its case, has filed the next appeal in ITA No.2089/2024 against the order dated 28.03.2023 in ITA No.517/CIT(A)VI/2008-09.
The Tribunal has dismissed the appeal in ITA/2089/Bang/2024 [as against the order dated order dated ITA No.517/CIT(A)VI/2008-09], recording that why the appellant has filed separate appeals as against the orders dated 28.03.2013 and 02.02.2022 is a moot question, has opined that the appellant's
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grievance as against disallowance must be finally adjudicated in the appeal as against the order dated 30.12.2010 but the appellant has not shown cause for the delay in calling in question the order dated 28.03.2013. The Tribunal has next observed that the appeal as against the order dated 02.02.2022 in CIT(A)-11/BNG/Tr.10103/2010-11 is ineffective and therefore both the appeals are dismissed.
Sri K K Chythanya and Sri Y.V. Raviraj are categorical on the aspects viz., [a] that with the search on 20.02.2009 the scrutiny assessment [on 30.12.2008] abated as all aspects had to be re- examined depending on the outcome in the search initiated; [b] that because no incriminating material was found, the search reassessment order dated 30.12.2010 is just a reiteration of the scrutiny assessment order dated 30.12.2008; [c] that the appellant's grievance as against disallowance in the
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scrutiny assessment order should be examined in a challenge to such order.
This Court must observe that these assertions have their merit in view of the decision of the Apex Court in Principal Commissioner of Income Tax, Central - 3 vs. Abhisar Buildwell Pvt. Ltd.1. The Apex Court in this decision has reiterated the exposition by the Delhi High Court in Commissioner of Income Tax (Central)- III v. Kabul Chawla2. The exposition by the Delhi High Court is that the assessment/ reassessment pending on the date of the search abates and in the absence of incriminating material the abated assessment and reassessment is reinstated [subject to any appeal]. As against this exposition, the CIT [A] has dismissed the appeal in ITA No.517/CIT(A)VI/2008-09 holding that the scrutiny assessment order dated 30.12.2008 has merged with the search assessment order dated
1 [2023] 454 ITR 212 (SC) / 2023 - TIOL-41-SC-IT 2 (2015) 61 taxmann.com 412 (Delhi)
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30.12.2010, the CIT [A] has disposed of the appeal CIT(A)-11/BNG/Tr.10103/2010-11 against the search assessment order dated 30.12.2010 holding that the grievance must be decided in the appeal against the scrutiny assessment order dated 30.12.2008.
This Court, in the light of the afore is of the view, that the Tribunal should have examined whether the appellant has made out a case for condonation of delay in availing the appellate remedy as against the orders dated 28.03.2013 and 02.02.2022 and decided on the merits of the order dated 28.03.2013 for compete adjudication on the appellant's grievance as against disallowance. The Tribunal has not considered these aspects, which would have enabled a complete adjudication on the appellant's grievance against disallowance in the scrutiny assessment order dated 30.12.2008.
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On the ground of delay, the appellant's specific case is that it was not served with the order dated 02.02.2022 in CIT(A)-11/BNG/Tr.10103/2010- 11 and that it has known about this order only when it received an e-mail dated 08.03.2024 by the consultant engaged for due diligence, and insofar as the delay in filing the appeal as against the order dated 28.03.2013, the appellant's case, as recorded by the Tribunal and reiterated before this Court, is that it was under a bona fide and genuine belief that its grievance would be addressed in the appeal pending in CIT(A)-11/BNG/Tr.10103/2010-11 against the order dated 30.12.2010.
The reason offered to explain the delay in filing the appeal in No.1670/2024 is not contested and reason for the corresponding delay in filing the appeal as against the order dated 28.03.2013 is examined in the light of the fact that the afore decision by the Apex Court is of the year 2021 and
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would be canvassed if the appellant was heard for the decision in the appeal on merits. In the light of these conclusions and to enable complete adjudication, the question of law framed is answered allowing the appeal thus. ORDER
The appeals are allowed in part setting aside the following orders: [a] The Tribunal's order dated 11.12.2024 in ITA No. 1670 and 2089/Bang/2024 and the order dated 28.03.2013 in ITA No.517/CIT(A)VI/2008-09. [b] This appeal restored for due consideration leaving all questions open on the disallowance in the scrutiny assessment order dated 30.12.2008. [c] It shall be open to the office of the Commissioner of Income Tax (Appeals) Mysuru to cause notice in ITA
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No.517/CIT(A)VI/2008-09 for rehearing of the appeals in terms of this order.
Sd/- (B M SHYAM PRASAD) JUDGE
Sd/- (T.M.NADAF) JUDGE
SA List No.: 1 Sl No.: 14