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NC: 2024:KHC:41199-DB ITA No. 155 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF SEPTEMBER, 2024 PRESENT THE HON'BLE MR JUSTICE S.G.PANDIT AND THE HON'BLE MR JUSTICE C.M. POONACHA INCOME TAX APPEAL NO. 155 OF 2023 BETWEEN:
THE PR COMMISSIONER OF INCOME TAX 5TH FLOOR, BMTC BUILDING, 80 FEET ROAD, KORMANGALA, BENGALURU 560095
THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE -11 (5), PRESENT ADDRESS ITO, WARD-4(3)(3), 2ND FLOOR, BMTC BUILDING, 80 FEET ROAD, KORMANGALA, BENGALURU 560095 …APPELLANTS (BY SRI. DILIP M.,ADVOCATE A/W SRI. RAVIRAJ Y V, ADVOCATE)
AND:
M/S KWALITY BISCUITS PVT LTD C/O MYSORE FEEDS PVT. LTD. NAYANDAHALLLI, MYSORE ROAD, BENGALURU 560039. PAN AACCK 3121H …RESPONDENT (BY SRI. CHANDRASEKHAR V.,ADVOCATE)
THIS ITA / INCOME TAX APPEAL IS FILED UNDER SEC.260-A OF THE INCOME TAX ACT, 1961, PRAYING TO FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED ABOVE, ALLOW THE APPEAL AND SET ASIDE THE ORDERS PASSED BY THE INCOME-TAX
Digitally signed by BHARATHI S Location: HIGH COURT OF KARNATAKA
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NC: 2024:KHC:41199-DB ITA No. 155 of 2023
APPELLATE TRIBUNAL, BENGALURU IN ITA NO.675/BANG/2020 DATED 17/10/2022 FOR ASSESSMENT YEAR 2006-2007 ANNEXURE - C AND CONFIRM THE ORDER OF THE APPELLATE COMMISSIONER CONFIRMING THE ORDER PASSED BY THE INCOME TAX OFFICER, WARD-4(3) (3) , BENGALURU AND ETC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.G.PANDIT and HON'BLE MR JUSTICE C.M. POONACHA
ORAL JUDGMENT (PER: HON'BLE MR JUSTICE S.G.PANDIT)
Heard the learned counsel Sri Dilip M along with learned counsel Sri Raviraj Y.V, for appellants/Revenue and learned counsel Sri Chandrashekar V, for the respondent/assessee.
The Revenue is in appeal under Section 260-A of the Income Tax Act, 1961 (for short, ‘the Act’) questioning the correctness and legality of order dated 17.10.2022 passed by the Income Tax Appellate Tribunal, ‘C’ Bench, Bengaluru (for short, ‘Appellate Authority’) in ITA.No.675/Bang/2020 for the assessment year 2006-07, raising the following substantial questions of law:
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NC: 2024:KHC:41199-DB ITA No. 155 of 2023
“1. Whether under the facts and circumstances of the case, the Tribunal was correct in giving relief to the assessee on the ground of reopening of assessment u/s 147 of the Income Tax Act, 1961 considering it as change of opinion and stating that the financial statements of the assessee, details of sale value etc, have already been available on records and the AO has not brought any new material for the purpose of reopening the assessment"?
Whether under the facts and circumstances of the case, the Tribunal was correct in giving relief to the assessee on the ground of reopening of assessment u/s 147 of the Income Tax Act, which decision is against the Explanation 1 to the provision of Section 147 of the Income tax Act, as the reason for reopening emanates from the books of accounts of the assessee from which the material evidence of escapement of LTCG has been discovered by the Assessing Officer with due diligence required for reopening of the assessment?
Whether under the facts and circumstances of the case, the Tribunal was right in quashing the reassessment order relying on the decision of CIT vs. Kelvinator of India Ltd. (2010) 320 ITR 561 (SC) which is easily distinguishable as in the instant case, the reopening of assessment is not the change of opinion of the Assessing Officer?
Whether under the facts and circumstances of the
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NC: 2024:KHC:41199-DB ITA No. 155 of 2023
case, the Tribunal was right in not considering that the Assessing Officer's addition of Rs.8,91,96,531/- under the head Income from Long Term Capital Gain was made, which was not disclosed by the assessee in its Income Tax Return filed for AY 2006-07"?
Whether the Tribunal was correct in law in quashing the re-assessment proceedings, without appreciating the facts that producing document before the Assessing Officer is not sufficient reason to treat as full disclosure as explained in SL Lumax Ltd (2021) 437 ITR 549 (Madras)?”
Learned counsel for the assessee submits that the tax effect in this appeal is less than Rs.2 Crores and therefore, the appeal should not be entertained at the instance of the revenue in view of the Circular No.09/2024 dated 17.09.2024 issued by the Central Board of Direct Taxes. It is also submitted that the aforesaid Circular binds the revenue.
On the other hand, learned counsel for the revenue submits that he be granted liberty to revive the appeal in case the matter falls within the exceptions under
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NC: 2024:KHC:41199-DB ITA No. 155 of 2023
the aforesaid Circular dated 17.09.2024 and Circular No.5/2024 dated 15.03.2024.
In view of the aforesaid submissions, the appeal is disposed of with liberty as prayed for by the learned counsel for the revenue. However, the question of law is kept open to be adjudicated in an appropriate proceeding.
Sd/- (S.G.PANDIT) JUDGE
Sd/- (C.M. POONACHA) JUDGE
BS List No.: 4 Sl No.: 32