Ita/507/2014 Of The Commissioner Of Income Tax v. M/S Ideb Builedcon Pvt Ltd

- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2 DAY OF FEBRUARY 2016) PRESENT THR HON’BLE MR.JUSTICE N.K. PATIL. ANT) THE HON’BLE MRS.JUSTICE S.SUJATHA| I.T.A.NO.507/2014 BRITWHBRE 1.THEB COMMISSIONBROF INCOME TAX.CR BUILDING|QUEENS ROAD,BANGALORE. 2 THR DEPUTY COMMISSIONEROF INCOME TAX.CIRCLE-11(4)RASHTROTHANA BHAVAN,NRUPATHUNGA ROAD,BANGALORE-5b60001 _. APPBLLANTS | (BY SRI. K V ARAVIND, ADVOCATE) | AND M/S IDEB BUILEDCON PVT LTD9TH & 1OTH FLOORS, DALTA TOWERS,SIGMASOFTECHPARK, NO.7,WHITHKRIBELBANGALORE-5b60066 ... RESPONDENT (BY SRI. A SHANKAR & SRI. M LAVA, ADVOCATES) | THIS INCOMB TAX APPBAL IS FILED UNDERSEC.2600-A OF INCOME TAX ACT 1961, AGAINST|ORDERDATED:18/07/2014.PASSEDTN|ITANO.317/BANG/2013, FOR THE ASSESSMENT YEARAQOO9-2JO10O AND TO FORMULATB THE SUBSTANTIQUESTIONS OF LAW STATED ABOVE AND ALLOW)THR APPKEAL AND SEI ASIDE THE ORDER PASSED BYTHE ITAT, BANGALORE IN ITA NO.317/BANG/2013_DATED:18/07/2014 CONFIRMING THE ORDER OFTHR APPELLATE COMMISSIONBR AND CONFIRM THE!ORDBR PASSED BY THR DBPUTY COMMISSIONER OF|INCOME TAX, CIRCLE-11(4), BANGALORE. THIS APPEAL COMING ON FOR ADMISSION THISDAY,N.K.PATIL, JDELIVERED THRE FOLLOWING:- JUDGMENT This appeal is by the revenue being aggrieved bythe impugned order dated 18.07.2014 passed in ITA.No.317/Bang/2013 on the file of Income Tax AppellateTribunal, Bangalore confirming the order passed by theAppellate Commissioner, confirming the order passed bythe Deputy Commissioner of Income Tax, Circle-11(4),.Bangalore, for considering the following substantialquestions of law:- - 3 - 1.“Whether on the facts and in thecircumstances of the case, the order ofthe Tribunal in holding that the order ofthe first appellate authority does notsuffer from any legal infirmity 1s correctwithout appreciating that the CIT(A) hasmentionedin|hisorder|thattheassessing authority had not issued anotice under section 143(2) on therevised|returnfurnishedwithoutappreciating|thatthe|assessingauthority has issued a notice undersection 143(2) on 14.09.2011 on therevised return and hence the Tribunal|ought to have set aside the issue to theCIT(A) for re-examination? 2)Whether on the facts and in _ thcircumstances of the case, the Tribunalwas correct in upholding the order ofCIT(A) without appreciating that theassessing authority in his remand - 4 - report has reported that a notice undersection 143(2) dated 14.09.2011 wasalso issued with reference to the revisedreturn and that the assessing officerhad recomputed the profits by applyingpercentagecompletionmethodandarrived at the taxable income in the.assessment order? 3.Whether the Commissioner of IncomeTax (Appeals) and the Tribunal wereTax (Appeals) and the Tribunal were correct in annulling the assessmentorder without appreciating that theadditionalgroundraisedby|the assessee was not only misleading butamountedtO mis-representationof|factsP” 2. It is the case of the revenue that the Assessing. Officer by his order dated 29.12.2011 considered therevised return of income on 31.3.2011. Being notsatisfied with the same, the respondent-assessee filed - 5 - an appeal before the Appellate Commissioner and theAppellate Commissioner in turn by his order dated17.12.2012 held the issue in favour of assessee and annulled the assessment order. Being dissatisfied withorder dated 17.12.2012 passed by the AppellateCommissioner, the revenue filed an appeal before theAppellate Tribunal. The Appellate Tribunal in turndismissed the appeal filed by the revenue by its orderdated 18.7.2014 confirming the order passed by theAppellate Commissioner. Being dissatisfied with theorders impugned, the appellants have presented thisappeal. — 3. We have heard the learned counsel appearingfor the appellants and the learned counsel appearing forthe respondent-asseSsSee. - 5 - an appeal before the Appellate Commissioner and theAppellate Commissioner in turn by his order dated17.12.2012 held the issue in favour of assessee and annulled the assessment order. Being dissatisfied withorder dated 17.12.2012 passed by the AppellateCommissioner, the revenue filed an appeal before theAppellate Tribunal. The Appellate Tribunal in turndismissed the appeal filed by the revenue by its orderdated 18.7.2014 confirming the order passed by theAppellate Commissioner. Being dissatisfied with theorders impugned, the appellants have presented thisappeal. — 3. We have heard the learned counsel appearingfor the appellants and the learned counsel appearing forthe respondent-asseSsSee. 4. Sri K.V.Aravind, learned counsel appearing forthe appellants, after going through the original recordsavailable, submits that the department has issuednotice to the respondent-assessee, but they did not have acknowledgment for having served the same on theassessee. Therefore, he submitted that in view of non-|availability of acknowledgment for having served thenotice to the respondent-assessee in the records, thesubstantial questions of law raised in the instant appealare not sustainable for consideration. Therefore he'|submitted that appropriate order may be passed havingregard to the facts and circumstances of the case. o. After hearing learned counsel appearing for theappellants and after perusal of the entire materialavailable on record, it is not in dispute that the learnedcounsel appearing for the appellants are unable toproduce the acknowledgement for having served thenotice to the respondent-assessee as required under therelevant provisions of the Act and Rules. Therefore,answering the substantial questions of law does notarise for consideration. | 6. The Appellate Authorityhas taken into.consideration all these aspects of the matter andrecorded a clear finding of fact by assigning valid and - 7 - cogent reasons, holding that no acknowledgment as.such has been produced by the revenue, inspite ofaffordingsufficientopportunity.Therefore, thereasoning given by the appellate authority and theappellate Tribunal is strictly in consonance with Section 143(2) of Income Tax Act. Therefore, interference by thisCourt is not called for. The instant appeal filed by the appellants is dismissed as devoid of merits. Ta| sd/-. JUDGE ~- sd/- JUDGE.