Ita/121/2010 Of Sri. M L Venkatesh v. The Deputy Commissioner Of Income Tax

IN THE HIGH COURT OF KARNATAKA AT BENGALURUON THE 20[th]DAY OF NOVEMBER, 20138— BEFORE. THE HON'BLE MR. JUSTICE RAVI MALIMATH AND| THE HON'BLE MR.JUSTICE K.NATARAJAN | INCOME TAX APPEAL NO.1271 OF 201 BETWEEN: SRI M.L. VENKATESHNO.252, 13 MAIN, |I STAGE, I PHASE, GOKUL, BENGALURU. ... APPELLANT| (BY SRI KASHINATH KALMATH, ADVOCATE |FOR SRI R.RAMAMURTHY, ADVOCATE) AND THE DEPUTY COMMISSIONER OF|INCOME TAX (TDS), CIRCLE —- 18(1), BENGALURU. ~.. RESPONDENT| (BY SRI K.V.ARAVIND, ADVOCATE) THIS INCOMETAXAPPEAL|ISFILEDUNDER|SECTION 260A OF THE INCOME TAX ACT, 1961 ARISING|OUT OF ORDER DATED 20.11.2009 PASSED IN ITANO.803/BNG/2009, FOR THE ASSSESSMENT YEAR 2005- 2006, PRAYING THAT THIS HON'BLE COURT MAY BE|PLEASED TO; FORMULATE THE SUBSTANTIAL QUESTIONS.OF LAW STATE THEREIN; ALLOW THE APPEAL AND SET|ASIDE THE ORDER PASSED BY THE [TAT BENGALURU IN.ITA NO.803/BNG/2009, DATED 20.11.2009, IN THE|INTEREST OF JUSTICE AND EQUITY. AK AK THIS INCOME TAX APPEAL COMING ON FOR|HEARING THIS DAY, RAVI MALIMATH J., DELIVERED THEFOLLOWING: ORDER By tne order dated 12.04.2010, the appeal was.admitted to consider the following substantial questions oflaW! a)Whether the Tribunal is right in refusing to|remit the matter to the files of the AssessingAuthority notwitnstanding tnere is violation ofPrinciples of natural Justice?| D)Whetner,|OTPthefactsandInthecircumstances,theTribunalIS rightInupholding the order of the Commissioner ofIncome Tax (Appeals), who nas upneld theexparte assessment made under Section-144.of the Act, without considering the return filedunder Section — 139(4) of the Act? C)Whether, tne Tribunal without considering tne|explanation of the appellant for nis failure Isrignt in its conclusion that the appellant nasnot co-operated witn the department?explanation of the appellant for nis failure Isrignt in its conclusion that the appellant nasnot co-operated witn the department? adWhether, the Tribunal is rignt in upholding|assessment made in pursuance notice underSection — 142 of the Act, which called upon theappellant to file return of income, ignoring avalid return filed under Section -— 139(4) of theAct by the appellant?assessment made in pursuance notice underSection — 142 of the Act, which called upon theappellant to file return of income, ignoring avalid return filed under Section -— 139(4) of theAct by the appellant? 2(Whethertheorderof.theTribunalIS|sustainable In law?”sustainable In law?” 2. The learned counsel for the appellant submits that the question of law that arises for consideration in this.appeal, requires to be reframed and that the appeal is to)be considered only so far as the first substantial question.of law Is concerned. Hence, we nave heard the learned|counsels insofar as the first substantial question of law is.concernecad ‘3.Based on certain information pertaining to theSavings Bank Account of the assessee, a notice under.Section-142, dated 13.09.2007, was issued to the|assessee. He failed to reply to the notice inspite of)repeated reminders. Thereafter, a show-cause notice wasissued in the form of a proposal to assess the income of.the assessee, as to why assessment should not be)completed under Section-144 of Income tax Act, on the.basis of the information available on record. Even then, theassessee failed to reply. Thereafter, an order was passedunder Section-144 of I.T.Act., treating the deposit in the)Savings Bank Account of the assessee as ‘unexplainedinvestment’ and assessed tax in a sum of RS.48,23,925/-. 4Aggrieved by the same, the appellant preferredan appeal before the Commissioner of Income tax(Appeals) [hereinafter referred to as ‘CIT(A)’] andcontended that the assessee had filed a return of income|on 31.03.2006, declaring income of Rs.97,8/70/-. TheCIT(A) dismissed the appeal. Aggrieved by the same, the 4Aggrieved by the same, the appellant preferredan appeal before the Commissioner of Income tax(Appeals) [hereinafter referred to as ‘CIT(A)’] andcontended that the assessee had filed a return of income|on 31.03.2006, declaring income of Rs.97,8/70/-. TheCIT(A) dismissed the appeal. Aggrieved by the same, the appellant approached the Income tax Appellate Tribunal|(hereinafter referred to as ‘ITAT’). He made a request toremand the matter. The same was rejected by the.Tribunal. Hence, this appeal. 5.The learned counsel for the appellant contendstnat there are substantial material that he proposes to)place before tne Assessing Officer. That ne would only)request for reconsideration of the said material. 6.The learned counsel for the Revenue disputestne said contention. J.The plea is one for remand, to enable theassessee to place tne material in Support of his case.Hence, an opportunity to the assessee is called for. 8.On nearing learned counsels, we are of tneview that in the given facts and circumstances of the case,it is just and appropriate that liberty be granted to the | assessee to make out his case before the Assessing_Officer. Therefore, we are of the view that the matterrequires to be remanded to the Assessing Officer for,reconsideration. QO.For the aforesaid reasons and under the factsand circumstances of tne case, the substantial question of|law is answered in favour of the assessee and against tne|Revenue by holding that the Tribunal was not justified in.rejecting the request of the assessee to remand the matter|to the Assessing Officer for reconsideration. 10.Consequently, the order of the ITAT dated20.11.2009, passed in ITA No.803/Bang/2009, the order of|the.CIT(A)dated24.06.2009,passedIn,ITANo.120/23/C.6(4)/CIT(A)-V/08-09, and the order of theAssessing Officer dated 31.12.2007, are set-aside. The.matter is remanded to the Assessing Officer for a freshconsideration of the matter. � �99�>3?�2?�=3?;�642�F28��382?�� �����������,-�����������������������������������������������������,-� ����������������������������� ����������������������� ���