SRI B KRISHNAPPA vs THE COMMISSIONER OF INCOME TAX

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 8TH DAY OF SEPTEMBER, 2015

PRESENT

THE HON'BLE MR. JUSTICE VINEET SARAN

AND

THE HON’BLE MR. JUSTICE B.MANOHAR

REVIEW PETITION NO.775/2013

BETWEEN:

SRI B.KRISHNAPPA NO.1691, ANJANEYA TEMPLE STREET, KENGERI SATELLITE TOWN, BANGALORE-560 060 KARNATAKA …PETITIONER

AND:

THE COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE, C.R.BUILDING, QUEEN’S ROAD, BANGALORE-560 001.

THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-9(1), C.R.BUILDING, QUEENS ROAD, BANGALORE-560 001. …RESPONDENTS

THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE 1 OF CPC PRAYING TO REVIEW THE ORDER DATED 14.08.2012 PASSED IN ITA 1133/2006.

THIS REVIEW PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

This is a review petition filed by the assessee- respondent in ITA No.1133/2006, decided on 14.08.2012.

We have heard Sri A.Shankar, learned counsel along with Sri R. Ramamurthy, appearing on behalf of the review petitioner as well as Sri Jeevan J. Neeralagi, learned counsel for the respondents-revenue and perused the record.

The primary submission of learned counsel for the review petitioner is that this Court, while passing the judgment and order dated 14.08.2012, had in fact considered that the land in question totaling to

31.19 acres was purchased, at the rate of Rs.1.61 lacs per acre for 23.19 acres and at the rate of Rs.2.60 lacs per acre for 08 acres, but while calculating the price of the total 31.19 acres land, this Court has ultimately calculated at the rate of Rs.1.61 lacs per acre for the entire 31.19 acres, which is against the admitted facts and price on record. It has further been contended that this Court, while passing the judgment, has considered the share of the appellant to be 1/3rd, whereas the same was never admitted so by the assessee. Though the Assessing Officer had recorded a finding that the share of the appellant was 1/3rd but the same was challenged and a specific ground No.5 was taken to that effect before the Commissioner of Income Tax (Appeals).

However, since the Appellate Commissioner had allowed the appeal of the assessee on different grounds and had not adjudicated the question of share of the appellant, the appellant did not have any occasion to challenge such finding of the

Assessing Officer. It is contended that the Tribunal has also decided the appeal filed by the Revenue in favour of the assesse and did not thus look into the question of share of the assessee, which remained in dispute as the assessee had never accepted his share to be 1/3rd.

It has, thus, been contended that this Court, while passing the order dated 14.08.2012, has wrongly determined the share of the appellant at 1/3rd, even though the said question was never argued by the appellants-revenue in the appeal. The other question raised by the learned counsel for the review petitioner is that while deciding the appeal, this Court had considered the statement of M.R.Lakshmanappa recorded by the Assessing Officer, who did not consider the statement of the purchaser Sri N.K.Mohta, and thus the interest of the review petitioner has been adversely affected.

Sri Jeevan J. Neeralagi, learned counsel for the respondents-Revenue has accepted that there could be a mistake in the calculation of the purchase price of 31.19 acres of land. He has, however, submitted that the asseesee had never claimed his specific share, and as such, in the absence of any such claim made by the assessee, the Court has rightly determined his share to be 1/3rd, as there were three partners in the agreement. It is, thus, contended that with regard to other issues, except the purchase price of the land, no interference is called for.

Having heard learned counsel for the parties and on perusal of the record, it is clear that this Court has wrongly determined the purchase price of 31.19 acres of land at the rate of 1.61 lacs per acre, whereas it should have been Rs.1.61 lacs per acre for 23.19 acres and at the rate of Rs.2.60 lacs per acre for the

remaining 08 acres. To this extent, the order admittedly requires to be reviewed and modified.

As regards the determination of share of the assessee at 1/3rd, in our view, since the assessee had never accepted his share to be so, and contested the same by raising a specific ground No.5 in his appeal filed before the Appellate Commissioner, which ground was not decided by the first appellate authority because the appeal of the assessee was decided in his favour on certain other grounds, and so was it before the Tribunal also, we are of the view the said question should be looked into and considered by the first appellate authority itself.

In such view of the matter, the order dated 14.08.2012 allowing the appeal being ITA No.1133/2006 is reviewed and modified to the extent that the order of the Tribunal, as well as the order of the first appellate authority, in the case of

assessee are set aside and the matter is remanded to the Appellate Commissioner to decide the appeal afresh in the light of the observations made herein above and to re-determine the purchase price of 31.19 acres of land, as well as determination of the share of the assessee as per the agreement dated 23.03.1995, and also to look into other contentions, as may be raised by the parties before the Appellate Commissioner.

The review petition stands allowed to the extent as indicated above. No order as to costs.

Sd/-

JUDGE

Sd/-

JUDGE

SRI B KRISHNAPPA vs. THE COMMISSIONER OF INCOME TAX