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- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY 2016 PRESENT THE HON’BLE MR.JUSTICE N.K. PATIL AND
THE HON’BLE MRS.JUSTICE S.SUJATHA
I.T.A.NO.507/2014
BETWEEN:
1.THE COMMISSIONER OF INCOME TAX C R BUILDING QUEENS ROAD, BANGALORE.
2.THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-11(4) RASHTROTHANA BHAVAN, NRUPATHUNGA ROAD, BANGALORE-560001 ... APPELLANTS
(BY SRI. K V ARAVIND, ADVOCATE )
AND
M/S IDEB BUILEDCON PVT LTD 9TH & 10TH FLOORS, DALTA TOWERS, SIGMASOFTECHPARK, NO.7, WHITEFIELD BANGALORE-560066 ... RESPONDENT
(BY SRI. A SHANKAR & SRI. M LAVA, ADVOCATES )
- 2 -
THIS INCOME TAX APPEAL IS FILED UNDER SEC.260-A OF INCOME TAX ACT 1961, AGAINST ORDER DATED:18/07/2014 PASSED IN ITA NO.317/BANG/2013, FOR THE ASSESSMENT YEAR 2009-2010 AND TO FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED ABOVE AND ALLOW THE APPEAL AND SET ASIDE THE ORDER PASSED BY THE ITAT, BANGALORE IN ITA NO.317/BANG/2013 DATED:18/07/2014 CONFIRMING THE ORDER OF THE APPELLATE COMMISSIONER AND CONFIRM THE ORDER PASSED BY THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-11(4), BANGALORE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, N.K.PATIL, J DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is by the revenue being aggrieved by the impugned order dated 18.07.2014 passed in ITA No.317/Bang/2013 on the file of Income Tax Appellate Tribunal, Bangalore confirming the order passed by the Appellate Commissioner, confirming the order passed by the Deputy Commissioner of Income Tax, Circle-11(4), Bangalore, for considering the following substantial questions of law:-
- 3 - 1. “Whether on the facts and in the circumstances of the case, the order of the Tribunal in holding that the order of the first appellate authority does not suffer from any legal infirmity is correct without appreciating that the CIT(A) has mentioned in his order that the assessing authority had not issued a notice under section 143(2) on the revised return furnished without appreciating that the assessing authority has issued a notice under section 143(2) on 14.09.2011 on the revised return and hence the Tribunal ought to have set aside the issue to the CIT(A) for re-examination?
Whether on the facts and in the circumstances of the case, the Tribunal was correct in upholding the order of CIT(A) without appreciating that the assessing authority in his remand
- 4 - report has reported that a notice under section 143(2) dated 14.09.2011 was also issued with reference to the revised return and that the assessing officer had recomputed the profits by applying percentage completion method and arrived at the taxable income in the assessment order?
Whether the Commissioner of Income Tax (Appeals) and the Tribunal were correct in annulling the assessment order without appreciating that the additional ground raised by the assessee was not only misleading but amounted to mis-representation of facts?”
It is the case of the revenue that the Assessing Officer by his order dated 29.12.2011 considered the revised return of income on 31.3.2011. Being not satisfied with the same, the respondent-assessee filed
- 5 - an appeal before the Appellate Commissioner and the Appellate Commissioner in turn by his order dated 17.12.2012 held the issue in favour of assessee and annulled the assessment order. Being dissatisfied with order dated 17.12.2012 passed by the Appellate Commissioner, the revenue filed an appeal before the Appellate Tribunal. The Appellate Tribunal in turn dismissed the appeal filed by the revenue by its order dated 18.7.2014 confirming the order passed by the Appellate Commissioner. Being dissatisfied with the orders impugned, the appellants have presented this appeal.
We have heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent-assessee.
Sri K.V.Aravind, learned counsel appearing for the appellants, after going through the original records available, submits that the department has issued notice to the respondent-assessee, but they did not have
- 6 - acknowledgment for having served the same on the assessee. Therefore, he submitted that in view of non- availability of acknowledgment for having served the notice to the respondent-assessee in the records, the substantial questions of law raised in the instant appeal are not sustainable for consideration. Therefore he submitted that appropriate order may be passed having regard to the facts and circumstances of the case.
After hearing learned counsel appearing for the appellants and after perusal of the entire material available on record, it is not in dispute that the learned counsel appearing for the appellants are unable to produce the acknowledgement for having served the notice to the respondent-assessee as required under the relevant provisions of the Act and Rules. Therefore, answering the substantial questions of law does not arise for consideration.
The Appellate Authority has taken into consideration all these aspects of the matter and recorded a clear finding of fact by assigning valid and
- 7 - cogent reasons, holding that no acknowledgment as such has been produced by the revenue, inspite of affording sufficient opportunity. Therefore, the reasoning given by the appellate authority and the appellate Tribunal is strictly in consonance with Section 143(2) of Income Tax Act. Therefore, interference by this Court is not called for.
The instant appeal filed by the appellants is dismissed as devoid of merits.
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JUDGE
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JUDGE ra