Ita/188/2020 Of Principal Commissioner Of Income Tax-5 v. Sri Shailesh Haran

Digitally signedby ANUSHA VLocation: HIGHCOURT OFKARNATAKA IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5 DAY OF JUNE, 2023 PRESENT THE HON'BLE MR JUSTICE P.S.DINESH KUMAR AND THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA INCOME TAX APPEAL NO. 188 OF 2020 BETWEEN : PRINCIPAL COMMISSIONER OF INCOME TAX-5 BMTC COMPLEX KORAMANGALA BENGALURU …APPELLANT (BY SHRI. E.I. SANMATHI, STANDING COUNSEL) AND: SRI. SHAILESH HARAN NO.47, S.B.ROAD V.V. PURAM BANGALORE-560 004. PAN NO. …RESPONDENT (BY SMT. R. PRATHIBA, ADVOCATE FOR SHRI. S. PARTHASARATHI, ADVOCATE) . . . . THIS ITA IS FILED UNDER SEC.260-A OF INCOME TAX ACT 1961, ARISING OUT OF ORDER DATED 28.06.2019 PASSED IN ITA NO. 2632/BANG/2017, FOR THE ASSESSMENT YEAR 2014-2015, PRAYING TO DECIDE THE FOREGOING QUESTION OF LAW AND / OR SUCH OTHER QUESTIONS OF LAW AS MAY BE FORMULATED BY THE HON'BLE COURT AS DEEMED FIT AND SET ASIDE THE APPELLATE ORDER DATED 28.06.2019 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, ‘C’ BENCH, BENGALURU, IN APPEAL PROCEEDINGS No. ITA No. 2632/BANG/2017 (ANNEXURE-A) FOR THE ASSESSMENT YEAR 2014-2015 AS SOUGHT FOR IN THIS APPEAL AND ETC. ARISING OUT OF ORDER DATED 28.06.2019 PASSED IN ITA NO. THIS ITA, COMING ON FOR FINAL HEARING, THIS DAY, P.S.DINESH KUMAR, J., DELIVERED THE FOLLOWING: JUDGMENT This appeal directed against the order dated 28.06.2019 in ITA No.2632/Bang/2017 passed by the ITAT remitting the matter to the file of Assessing Officer for fresh consideration in accordance with law, has been admitted to consider the following questions: 1. Whether on the facts and circumstances of the case in law, the Tribunal was justified in not upholding the order of the Assessing Officer whereas the Assessing Officer has brought out clear facts of modus operandi of persons involved in bogus long term capital gains as per which the assessee is the beneficiary of the bogus long term capital gain? the Tribunal was justified in not upholding the order of the Assessing Officer whereas the Assessing Officer has brought out clear facts of modus operandi of persons involved in bogus long term capital gains as per which the assessee is the beneficiary of the bogus long term capital gain? 2.Whether on the facts and circumstances of the case and in law, the Tribunal’s direction for reconsideration of the case can be said as perverse even though the Assessing Authority made addition under Section 68 of the Act by considering the materials on record and after affording reasonable opportunity of hearing to the assessee? law, the Tribunal’s direction for reconsideration of the case can be said as perverse even though the Assessing Authority made addition under Section 68 of the Act by considering the materials on record and after affording reasonable opportunity of hearing to the assessee? 2. We have heard Shri. E.I. Sanmathi, learned Advocate for the Revenue and Smt. R. Prathiba, for Shri. S. Parthasarathi, learned Advocate for the assessee. Smt. R. Prathiba, for 3. Shri. Sanmathi submitted that all the documents relied upon by the Assessing Officer were furnished to the assessee. The ITAT being the last fact finding authority was required to examine the appeal on merits. Instead, the ITAT has remitted the matter to the file of the Assessing Officer for fresh consideration. Therefore, the order of remand is not sustainable in law. 4. Smt. Prathiba, for the assessee submitted that the Assessing Officer had used third party information to arrive at his conclusions. Having considered the entire matter in extenso, the ITAT ought not to have remanded the matter to the Assessing Officer. Smt. R. Prathiba, for 3. Shri. Sanmathi submitted that all the documents relied upon by the Assessing Officer were furnished to the assessee. The ITAT being the last fact finding authority was required to examine the appeal on merits. Instead, the ITAT has remitted the matter to the file of the Assessing Officer for fresh consideration. Therefore, the order of remand is not sustainable in law. 4. Smt. Prathiba, for the assessee submitted that the Assessing Officer had used third party information to arrive at his conclusions. Having considered the entire matter in extenso, the ITAT ought not to have remanded the matter to the Assessing Officer. 5. We have carefully perused the order passed by the ITAT. It is recorded therein that Assessing Officer has used third party document. Therefore, it is necessary to provide an opportunity to the assessee to rebut the evidence used against him. We may further record that ITAT is the last fact finding authority and based on the material on record, it has noticed as aforesaid and remitted the matter to the Assessing Officer. Hence, no prejudice is caused to the Revenue by the remand order. Therefore, we find no ground to interfere in this appeal. 6. At this stage, Shri. Sanmathi submitted that the ITAT has also recorded that the assessee was not permitted to cross-examine. He submitted that Revenue has not examined any witness. Therefore, the question of cross-examination does not arise. 7. In any event, the matter has been remitted to the file of Assessing Officer. Assessing Officer shall reconsider the matter afresh, in accordance with law and if an opportunity is given to the Revenue, assessee shall also be provided an opportunity to rebut the same. Appeal is dismissed. Since the matter has been remanded to the Assessing Officer by the ITAT, questions of law are not answered. No costs. Sd/- JUDGE Sd/- JUDGE SPS List No.: 2 Sl No.: 41