Ita/32/2018 Of M/S V K Bharathi v. The Commissioner Of Income Tax

IN THE HIGH COURT OF KARNATAKA AT BENGALURU|ON THE 11 DAY OF DECEMBER, 2018. BEFORE THE HON BLE MR. JUSTICE RAVI MALIMATH| AND| THE HON'BLE MR. JUSTICE K. NATARAJAN) INCOME TAX APPEAL NO.32 OF 2Z2O BEI|WEE M/S. V.K. BHARATHIAGED ABOUT 50 YEARS,WIFE OF MR. M.V. PRASAD BABU,RESIDING AT NO.22, |SHOP NO./, 1 FLOOR,SUBRAMANYAPURA POST,UTTARAHALLI MAIN ROAD,CHIKKALSANDRA,BENGALURU. ~... APPELLAN I] (BY SRI S.SUSHANT VENKATESH PAI, ADVOCATE) AND 1.THE COMMISSIONER OF INCOME-T AX BENGALURU - III, BENGALURU, $ FLOOR, BMTC BUILDING,80 FEET ROAD,|KORAMANGALA, 6 BLOCK,BENGALURU. 2 |THE INCOME TAX OFFICER. WARD-3(2)(4), BENGALURU. ~. RESPONDENTS. (BY SRI JEEVAN J.NEERALGI, ADVOCATE) KOK OK THISINCOME|TAX.APPEAL|ISFILED|UNDERSECTION 260A OF THE INCOME TAX ACT, 1961, PRAYINGTO FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW|STATED THEREIN AND ALLOW THE APPEAL AND SET|ASIDE THE ORDER DATED 13-9-201L/7 PASSED BY THINCOME TAX APPELLATE TRIBUNAL, BENGALURU, IN I.T.A.NO.11/74/BANG/201/7. THIS INCOME TAX APPEAL COMING ON FORADMISSION THIS DAY, RAVI MALIMATH, J., DELIVERED|THE FOLLOWING: JUDGMENT The assessee is an individual. She filed her return ofincome for the Assessment Year 2012-13 declaring a total income of Rs.10,84,850/-. Tne same was processed under|Section 143(1) of the Income Tax Act, 1961, (for short,|‘the Act’). It was subsequently selected for scrutiny.Notices were issued. Thereafter, the Assessing Officeraccepted the income of the assessee. Thereafter,proceedings were issued under Section 263 of the Act by.the Principal Commissioner of Income Tax, Bengaluru. The Principal Commissioner of Income Tax was of the viewthat the order of the Assessing Officer was erroneous and)prejudicial to the interests of the Revenue. The assessmentorder was set-aside witn a adirection to reframe tneassessment in accordance with law, after examining the.issue and after giving an opportunity of being heard.Aggrieved by the same, an appeal was filed before the|Tribunal. Tne Tribunal dismissed the appeal. Hence, this|appeal. 2. The appellant nas raised the following substantialquestions of law for consideration: /.Whether on tne facts and in thecircumstances of the case and the /aw|applicable,thefindingandtheconclusion of the Tribunal thet the|assessment.order|DaSS€dUnderSection 143(3) of the Income Tax Act,1961, aated 20-3-2015 is erroneous|in so far as it ts prejudicial to tne}interests of Revenue Under Section|263 of the Income Tax Act, 1961 Iscorrect? inWhether on the facts and in the!circumstances of the case and the Jaw|applicable,the|findingandthe|conclusion of the Tribunel thet no|query was raised by the Assessing|Officer regarding purcnase and sale ofImmovablepropertyauringtheassessment proceedings is correct? TirWhetherOf)the facts,Inthe|circumstances anda on the groundsana contentions urged, the Tribunal|was rignt in nolding tnat Section 50C.of the Income Tax Act, 1961 was|applicable to the instant case? lV. Once tne Revenue has accepted an|asset as Stock In Trade’ in the hands|of the firm can the same asset be.made applicable to attract Section|50OC of the Income Tax Act In thehands of the Partner? V/ Whether.theTribunal]erredInairecting the Assessing Officer to re-assess tne filings of the appellant? V/.Whether land is “stock In trade” for|entities involved in the development|and sale of land or a capital asset?entities involved in the development|and sale of land or a capital asset? 3. Sri S. Susnant Venkatesh Pai, the learned counselfor the appellant, primarily, contends that the matter was|sent back for determination in accordance with law.Certain facts are recorded. However, the same would|affect the assessee. Hence, he pleads that the AssessingOfficer be directed to consider the matter afresh, and ne)would produce the documents in support of the same. 4. The same is disputed py Sri Jeevan J. Neeralgi,|the learned counsel for the respondents. V/ Whether.theTribunal]erredInairecting the Assessing Officer to re-assess tne filings of the appellant? V/.Whether land is “stock In trade” for|entities involved in the development|and sale of land or a capital asset?entities involved in the development|and sale of land or a capital asset? 3. Sri S. Susnant Venkatesh Pai, the learned counselfor the appellant, primarily, contends that the matter was|sent back for determination in accordance with law.Certain facts are recorded. However, the same would|affect the assessee. Hence, he pleads that the AssessingOfficer be directed to consider the matter afresh, and ne)would produce the documents in support of the same. 4. The same is disputed py Sri Jeevan J. Neeralgi,|the learned counsel for the respondents. 5. On nearing learned counsels, we are of the view.tnat no substantial questions of law arise for considerationin this appeal. Tne Commissioner has sent back the}matter for determination by the Assessing Officer.However, certain observations of fact nas been made.Therefore, we are of the view that when the matter is sent)back for re-determination for the Assessing Officer, the. issues are to be kept open. Hence, we are of the view|that the Assessing Officer shall accept the documents of|tne assessee and tnen consider the matter. 6. Under these circumstances, we remand thematter by directing the Assessing Officer to re-considertne issue afresh. All contentions are kept open. The appeal is, accordingly, disposed off. kKVK