In Support Of His Contention, He Placed Reliance On Apex Court's Decision In Commissioner Of Income-Tax, Kolkata-Iii v. Jhabua Power Ltd[5]And Submitted That A Question Of Law Can Be Raised At Any Stage

Digitallysigned byRAMYA DLocation: HighCourt ofKarnataka IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16 DAY OF JANUARY, 2023 PRESENT THE HON'BLE MR JUSTICE P.S.DINESH KUMAR AND THE HON'BLE MR JUSTICE G BASAVARAJA INCOME TAX APPEAL NO. 776 OF 2018 BETWEEN: 1. SRI. PALGHAT RAMANATHAN SESHADRI TAPOVANA, #32, CLUB ROAD TAPOVANA, #32, CLUB ROAD BIDARAHALLI, OPP:EAST POINT HOSPITAL BENGALURU-560049 BENGALURU-560049 …APPELLANT (BY SRI. ANNAMALI S,ADVOCATE) AND: 1. THE INCOME TAX OFFICER WARD-4(2)(1), BMTC BUILDING, 80 FEET ROAD, 6TH BLOCK WARD-4(2)(1), BMTC BUILDING, 80 FEET ROAD, 6TH BLOCK KORAMANGALA, BENGALURU 560 095. …RESPONDENT (BY SRI. DILIP M, STANDING COUNSEL) THIS INCOME TAX APPEAL UNDER SEC.260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER DATED01/06/2018 PASSED IN C.O.NO.37/BANG/2018 IN ITA NO.702/BANG/2018, FOR THE ASSESSMENT YEAR 2011-2012. PRAYING TO FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW AS STATED ABOVE AND ANSWER THE SAME IN FAVOUR OF THE APPELLANT AND ETC. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, P.S.DINESH KUMAR J., DELIVERED THE FOLLOWING: JUDGMENT This appeal by the assessee, challenging the order dated 01.06.2018 in ITA No. 702/Bang/2018 passed by ITAT[1], Bengaluru has been admitted to consider the following question of law: "Whether the Tribunal was justified in law not holding that the rectification made was beyond the scope of Section-154 of the Act, and ought to have set-aside the order under Section-154 of the Act as bad in law, and without jurisdiction on the facts and circumstances of the case?" 2. Heard Shri. Annamalai, learned Advocate for the Assessee and Shri. M.Dilip, learned Standing Counsel for the Revenue. 3. Brief facts of the case are, after passing order under Section 143(1) of the Income Tax Act, 1961[2], a 1 Income Tax Appellant Tribunal 2 'the Act' for short recalling order under Section 154 of the Act was passed byAO[3] on 27.10.2015, adding tax on the following four heads: 4. On appeal by the assessee, CIT(A)[4] has granted partial relief by setting aside the additions made on three heads mentioned above and dismissed the appeal insofar as the addition with regard to wrong claim of depreciation of 15% namely, the second addition. 5. Revenue challenged the order passed by CIT(A) before ITAT. Assessee filed Cross Objection contending interalia that: 2. “The learned CIT(A) ought to have annulled/cancelled the order passed under Section 154 of the Act, on the facts and circumstances of the case; and 3 Assessing Officer 4 Commissioner of Income Tax (Appeals) 3. The learned CIT(A) was not justified in law in confirming the rectification order in respect of depreciation, as there was no mistake apparent from record, on the facts and circumstances of the case.” confirming the rectification order in respect of depreciation, as there was no mistake apparent from record, on the facts and circumstances of the case.” 6. It is recorded in para 4 of the impugned order that the assessee did not press the cross objection and accordingly, it was dismissed. 7. Shri. Annamalai, for the assessee submitted that since the order passed under Section 154 of the Act was without any valid reason and goes to root of the matter, the ITAT erred in rejecting ground No.2 raised before it. 8. In support of his contention, he placed reliance on Apex Court's decision in Commissioner of Income-tax, Kolkata-III Vs. Jhabua Power Ltd[5]and submitted that a question of law can be raised at any stage. 9. Shri. Dilip, for the Revenue argued opposing the same. 5 [2013] 37 taxmann.com 162 (SC) 10. We have carefully considered rival contentions and perused the records. 6. It is recorded in para 4 of the impugned order that the assessee did not press the cross objection and accordingly, it was dismissed. 7. Shri. Annamalai, for the assessee submitted that since the order passed under Section 154 of the Act was without any valid reason and goes to root of the matter, the ITAT erred in rejecting ground No.2 raised before it. 8. In support of his contention, he placed reliance on Apex Court's decision in Commissioner of Income-tax, Kolkata-III Vs. Jhabua Power Ltd[5]and submitted that a question of law can be raised at any stage. 9. Shri. Dilip, for the Revenue argued opposing the same. 5 [2013] 37 taxmann.com 162 (SC) 10. We have carefully considered rival contentions and perused the records. 11. Undisputed facts of the case are, against the order passed by the CIT(A), Revenue filed an appeal before the ITAT. The assessee filed its cross objection and did not press the same and it has been dismissed. Therefore, the Authority in Jhabua Power Ltd. is not applicable to the facts of the case. 12. In view of assessee’s own conduct, in not pressing the appeal before ITAT, no question of law arises for consideration. Accordingly, this appeal is dismissed for wrong submission. No costs. Sd/- JUDGE Sd/- JUDGE BH