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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF SEPTEMBER 2020
PRESENT
THE HON’BLE MR. JUSTICE ALOK ARADHE
AND
THE HON’BLE MR. JUSTICE H.T.NARENDRA PRASAD
I.T.A. NO.406 OF 2012 BETWEEN:
DR. HARSHA N. BILLANGADY #95, 3RD MAIN DOLLARS LAYOUT 4TH PHASE, J.P. NAGAR BANGALORE-560078. ... APPELLANT (BY SRI. A. SHANKAR, SR. COUNSEL A/W SRI. M. LAVA, ADV.,)
AND:
THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-5(1), 6TH FLOOR UNITY BUILDING ANNEXE MISSION ROAD, BANGALORE-560027. ... RESPONDENT (BY SRI. K.V. ARAVIND, ADV.) - - -
THIS ITA IS FILED UNDER SECTION 260-A OF I.T. ACT, 1961 ARISING OUT OF ORDER DATED 20.07.2012 PASSED IN ITA NO.1298/BANG/2011, FOR THE ASSESSMENT YEAR 2008-09, PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO: (I) FORMULATE THE SUBSTANTIAL QUESTION OF LAW STATED THEREIN.
(I) ALLOW THE APPEAL AND SET ASIDE THE FINDINGS TO THE EXTENT AGAINST THE APPELLANT IN THE ORDER PASSED BY THE TRIBUNAL IN ITA NO.1298/BANG/2011 DATED 20-07-2012.
THIS ITA COMING ON FOR HEARING, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 260A of the Income Tax Act, 1961 (hereinafter referred to as the Act for short) has been preferred by the assessee. The subject matter of the appeal pertains to the Assessment year 2008-09. The appeal was admitted by a bench of this Court vide order dated 22.07.2013 on the following substantial question of law: (i) Whether the Tribunal or the authorities below was justified in rejecting the claim of the assessee for deduction under Section 54F of the Income Tax Act, 1961 from the facts and circumstances of the case?
After hearing learned counsel for the parties, this court passed the following additional substantial question of law.
(i) Whether the order passed by the Assessing Officer without issuing proper notice under Section 143(2) of the Act on the original return filed by the assessee is non est in the eye of law?
We have heard the learned counsel for the parties. The assessee had filed the return of income under Section 139(4) of the Act on 18.03.2009 declaring a total income of Rs.46,58,720/-. Thereafter, the assessee filed the revised return under Section 139(5) of the Act on 23.11.2009. It is the case of the assessee that considering the revised return of the assessee, notice under Section 143(2) of the Act was issued on 26.08.2010 and therefore, the notice issued under Section 143(2) of the Act is non est in the eye of law. Learned counsel for the parties jointly submitted that the issue with regard to validity of the notice under Section 143(2) of the Act requires factual adjudication. Even otherwise, the aforesaid question has been raised by the assessee for the first time in this appeal.
Therefore, in the facts and circumstances of the case, we deem it appropriate to quash the order dated 20.07.2012 passed by the Income Tax Appellate Tribunal and remit the matter to the Tribunal for decision afresh in accordance with law. All contentions available to both the parties are kept open.
In the result, the appeal is disposed of.
Sd/- JUDGE
Sd/- JUDGE ss