Ita/250/2023 Of The Pr Commissioner Of Income Tax v. M/S Kansur Developers India Pvt Ltd

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. 250 OF 2023 BETWEEN: 1. THE PR COMMISSIONER OF INCOME TAX CENTRAL 3RD FLOOR C R BUILDING QUEENS ROAD BENGALURU 560001 2. THE ASSISTNAT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 1(4) 3RD FLOOR C R BUILDING QUEENS ROAD BENGALURU 560001 …APPELLANTS (BY SRI. DILIP M.,ADVOCATE A/W SRI. RAVIRAJ Y V, ADVOCATE) AND: M/S KANSUR DEVELOPERS INDIA PVT LTD NO 2650, GROUND FLOOR 37TH B CROSS 28TH MAIN 9TH BLOCK JAYANAGAR BENGALURU 560009 PAN AACCK 9866F …RESPONDENT (BY SRI. G. S. NAGHARISH.,ADVOCATE) THIS ITA / INCOME TAX APPEAL 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 APPELLATE TRIBUNAL, BENGALURU IN ITA NO.1441/BANG/2018 DATED 28.10.2022 FOR ASSESSMENT YEAR 2009-2010 ANNEXURE -C CONFIRMING THE ORDER OF THE APPELLATE COMMISSIONER AND CONFIRM THE ORDER PASSED BY THE ASST. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-1(4), 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., along with Sri. Raviraj. Y.V., 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 28.10.2022 passed by the Income Tax Appellate Tribunal, ‘A’ Bench, Bengaluru (for short, ‘Appellate Authority’) in ITA. No.1441/Bang/2018 for the assessment year 2009-10, raising the following substantial questions of law: “1. Whether on the facts and in the circumstances of the case, the Tribunal’s order can be said as perverse in holding that Section 68 is not applicable to remittance circumstances of the case, the Tribunal’s order can be said as perverse in holding that Section 68 is not applicable to remittance made in India by a non-resident and that it was not the company’s onus to prove the source of investor-company? 2. Whether on the facts and circumstances of the case, the Tribunal is right in law deleting the addition made under section 68 of the Act when all the conditions for invoking said section are satisfied in present case and when assesse had failed to discharge prima facie burden to establish credit worthiness of the investor? the case, the Tribunal is right in law deleting the addition made under section 68 of the Act when all the conditions for invoking said section are satisfied in present case and when assesse had failed to discharge prima facie burden to establish credit worthiness of the investor? 3. Whether on the facts and in the circumstances of the case, the Tribunal failed to observe that assessing authority had taken all steps to make addition under section 68 of the Act as required under the law and as per principles laid down by Hon’ble Apex Court in various cases? 4. Whether on the facts and circumstances of the case, the Tribunal is right in holding that what is not taxable under section 5(2) of the Act cannot be taxed under section 68 of the Act when the provisions of section 5(2) are not applicable to instant case?” - 4 - 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. Whether on the facts and circumstances of the case, the Tribunal is right in holding that what is not taxable under section 5(2) of the Act cannot be taxed under section 68 of the Act when the provisions of section 5(2) are not applicable to instant case?” - 4 - 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 BS List No.: 4 Sl No.: 3 Sd/- (C.M. POONACHA) JUDGE