Ita/103/2023 Of The Pr. Commissioner Of Income-Tax v. Kola Venkat Rama Naidu

Digitallysigned byBHARATHI SLocation:HIGHCOURT OFKARNATAKA IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30 DAY OF SEPTEMBER, 2024 PRESENT THE HON'BLE MR JUSTICE S.G.PANDIT AND THE HON'BLE MR JUSTICE C.M. POONACHA INCOME TAX APPEAL NO. 103 OF 2023 BETWEEN: 1. THE PR. COMMISSIONER OF INCOME-TAX CENTRAL, 3RD FLOOR C R BUILDING QUEENS ROAD BENGALURU 560001 2. THE COMMISSIONER OF INCOME TAX (APPEAL)-6 PRESENT ADDRESS DCIT, CENTRAL CIRCLE -1(3) 3RD FLOOR, C R BUILDING QUEENS ROAD BENGALURU 560001 …APPELLANTS (BY SRI. DILIP M.,ADVOCATE A/W SRI. RAVIRAJ Y V, ADVOCATE) AND: KOLA VENKAT RAMA NAIDU NO 13, 4TH CROSS 1ST MAIN ROAD DOLLARS COLONY BENGALURU 560094 PAN ABMPN 6059K …RESPONDENT (BY SRI. G.S. NAGHARISH.,ADVOCATE) THIS ITA / INCOME TAX APPEAL IS FILED UNDER SEC.260-A OF THE INCOME TAX ACT, 1961, PRAYING TO FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED ABOVE, ALLOW THE APPEAL AND SET ASIDE THE ORDERS PASSED BY THE INCOME-TAX - 2 - APPELLANT TRIBUNAL, BENGALURU IN ITA NO. 206/BANG/2020 DATED 05.08.2022 FOR ASSESSMENT YEAR 2010-2011 ANNEXURE- C AND CONFIRM THE ORDER OF THE APPELLATE COMMISSIONER CONFIRMING THE ORDER PASSED BY THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE- 1(3), BENGALURU AND ETC. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.G.PANDIT and HON'BLE MR JUSTICE C.M. POONACHA ORAL JUDGMENT (PER: HON'BLE MR JUSTICE S.G.PANDIT) Heard the learned counsel Sri. Dilip M., for appellants/Revenue and learned counsel Sri G.S. Nagharish, learned counsel for the respondent/assessee. 2. The Revenue is in appeal under Section 260-A of the Income Tax Act, 1961 (for short, ‘the Act’) questioning the correctness and legality of order dated 05.08.2022 passed by the Income Tax Appellate Tribunal, ‘A’ Bench, Bengaluru (for short, ‘Appellate Authority’) in ITA No.206/Bang/2020 for the assessment year 2010-11, raising the following substantial questions of law: “1. Whether the facts and circumstances of the case, the Tribunal’s order can be said as perverse in nature in holding that capital gain has to be taxed in the Assessment Year in which assessee actually received his share of constructed Area ignoring that capital gains under section 45 of the Act should have been offered in the year of entering into Joint Development Agreement i.e. 2010-2011 or alternatively in the year 2014-15 being the year of handing over possessing to the builder as conditions set out in section 2(47) are satisfied to hold that there is Transfer in accordance to parameters of said section? 2. Whether on the facts and in the circumstances of the case, the Tribunal was right in law in not appreciating that there is transfer under section 53A of the Transfer of Property Act and the ration laid down in the case of T.K.Dayalu is applicable to facts of present case?” 3. Learned counsel for the assessee submits that the tax effect in this appeal is less than Rs.2 Crores and therefore, the appeal should not be entertained at the instance of the revenue in view of the Circular No.09/2024 dated 17.09.2024 issued by the Central Board of Direct Taxes. It is also submitted that the aforesaid Circular binds the revenue. 4. On the other hand, learned counsel for the revenue submits that he be granted liberty to revive the appeal in case the matter falls within the exceptions under the aforesaid Circular dated 17.09.2024 and Circular No.5/2024 dated 15.03.2024. 5. In view of the aforesaid submissions, the appeal is disposed of with liberty as prayed for by the learned counsel for the revenue. However, the question of law is kept open to be adjudicated in an appropriate proceeding. Sd/- (S.G.PANDIT) JUDGE Sd/- (C.M. POONACHA) JUDGE