The Commissioner of Income Tax - IV vs. Ch. Mohan Rao,

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE K.C. BHANU

I.T.T.A. No. 287 of 2012

DATE: 24.07.2013

Between:

The Commissioner of Income Tax-IV, Hyderabad. … Appellant

And

Ch. Mohan Rao, Hyderabad. … Respondent

This Court made the following:

THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE K.C. BHANU

I.T.T.A. No. 287 of 2012

JUDGMENT: (Per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta)

We have heard Sri J.V. Prasad, learned counsel for the appellant and gone through the impugned judgment and order of the learned Tribunal.

This appeal is sought to be admitted on the following suggested question of law.

Whether on the facts and circumstances of the case, the Tribunal is correct in law in dismissing the department’s appeal having held that the assessee is liable for capital gains tax on transfer of his membership card of the Hyderabad Stock Exchange to a Company?

It appears that the learned Tribunal while deciding the entire matter came to the fact finding that notice under Section 148 was not served properly and on that ground alone the entire proceedings were set aside. The learned Tribunal came to the fact finding that no satisfaction has been recorded by the assessing officer that the assessee was deliberately avoiding service. Therefore, we do not think that we should interfere with the fact finding. Moreover, the learned Tribunal has held correctly that under Section 292BB regarding service of notice in case of reopening under the provisions of Section 148 does not apply. It appears that almost on an identical issue, we have decided and dismissed an appeal, being ITTA.No.134 of 2013 on 28.06.2013. We therefore do not find any reason to interfere with the impugned judgment and order of the learned Tribunal.

While dismissing this appeal, we are constrained to observe that as the learned Tribunal has dismissed the assessment proceedings merely on service of notice under Section 148 of the Act, it should not have gone into the merits of the matter.

_____________________ K.J. SENGUPTA, CJ

________________ K. C. BHANU, J

Date: 24.07.2013 ES