Ita/602/2013 Of The Commissioner Of Income Tax v. Shri A R Sharath

IN THB HIGH COURT OF KARNATAKA AT BANGALOREDATED THIS THE 27[th]DAY OF JUNE 2013 PRESENT THER HON’BLE MR. JUSTICE N.KUMARAN ] THE HON’BLE MR. JUSTICE B.MANOHAR| 1.T.A.NO.602 OF 2013 BETWEEN 1.The Commissioner of Income-Tax. C.R. Building Queens Road Bangalore| 2.The Income-Tax Officer| Ward — 3(4) C.R. Building Queens Road| Bangalore. .. Appellants. (BY Sri.G.Kamaladhar, Adv.) | AND Shri.A.R.Sharath L/R of Late Shri.A.N.RangaswamyNo.64, Hospital RoadBalepet Road CrossBangalore — 560 053, ...Responden (By Sri.A.Shankar, Adv.) . . . . This I.T.A. is filed under Section JOO0OA oft tIncome Tax Act, 1961 arising out of order dated 12.07.2013 passed in M.P.No.48/Bang/2013 (in ITA.No.483 to 489/Bang/2008), for the assessment year1998-99 to 2004-05 praying this Hon’ble Corut to: 1.Formulate the substantial questions of law stated above(11) allow the appeal and set-aside the orders passed bythe Income Tax Appellate Tribunal, Bangalore inM.P.No.48/Bang/2013 (in ILT.A. Nos.483, 484, 485,.486, 487, 488 & 489/Bang/2008 dated 12.07.2013 andconfirm the order of the Appellate Commissionerconfirming the order passed by the Income Tax Officer,Ward-3(4), Bangalore. This I.T.A. coming on foradmission,this day,N.Kumar J., delivered the following: JUDGMENT Thisappeal1Spreferredby theRevVeNUEchallenging the order passed by the tribunal dismissingthe rectification petition filed under Section 254(2) ofthe Income Tax Act, 1961 (hereinafter referred to as‘theAct?’for short) on the ground that there was no error in|the order of the Tribunal. 2 A search under Section 132 of the Act wasconducted in the case of assessee on 04.07.2003 in hisresidential premises and business premises M/s BlueClub. During the course of search, certain incriminatingdocuments were found and seized. 3. A notice under Section 153A of the Act wasissued to the assessee on 16.02.2004 giving him anopportunity to file the return of income within 30 days.from the date of receipt of notice. The notice was servedon the assessee on 27.02.2004. The assessee did not|file the returns within the time prescribed. The copiesof the seized material were furnished to the assessee on13.04.2004. On account of the non response to thenotice, a show cause notice under Section 2/76cc of theAct was issued to the assessee on 30.08.2004 callingupon him to explain as to why the _ prosecutioproceedings should not be initiated for non-complianceto the notice under Section 153A oft the Act. The said|notice was also served on 04.09.2004 on the assessee,but there was no response. Thereafter, a notice undersection 142(1) of the Act was issued to the assessee on21.09.2004 requesting him to produce the books ofaccounts and other details for determining his income. —The said notice was also served on the assessee on|29.09.2004, again there was no response. However,after several notices, the assessee filed the return of) income on 29.09.2005 disclosing a total income ofRs.90,000/- being the estimated income from the RealEstate business and an enquiry was conducted. Theassessing officer proceeded to pass an order on09.01.2006. Aggrieved by the aid order, the assesseepreferred an appeal, which came to be partly allowed on14.02.2008. Aggrieved by the said order, both theparties preferred an appeal to the Tribunal. TheTribunal, by its order dated 25.02.2009, grantedcomplete relief to the assessee; however, it cancelled theassessment. However, as the Tribunal held, in aproceeding under Section 193A of the Act, noassessment order could have been passed for theassessment year 2004-05. The authorities initiatedfresh proceedings for passing orders for the assessmentyears 2004-05. After hearing the assessee, an ordercame to be passed on 22.03.2010, again passing thevery same order. Aggrieved by the same, the assesseepreferred an appeal to the Commissioner of Income Tax(Appeals) to set aside the said order. Against the saidorder, the revenue has preferred appeal to the Tribunal. In the meanwhile, the revenue filed an applicationunder Section 294 (2) of the Act for rectification of themistake. The mistake according to them was theoriginal assessment order passed for the year 2004-05.was not under Section 153A of the Act, but it was anorder passed under Section 144 of the Act. Theassessee had suppressed the said fact and acting onthat representation, the said order of assessment cameto be set aside and therefore, it was contended the saidorder requires to be rectified. No doubt, the saidapplication was filed within four years, the timeprescribed for filing such application. In support oftheir contention they also produced notice undersection 143 (2) & (1) of the Act. Therefore, theycontended that there is an error apparent on the face ofthe record. Therefore the said order requires to berecalled. The Tribunal, on consideration of the materialon record, the statutory provisions came to theconclusion that the Tribunal has not committed anyerror in passing the said order and therefore, no case forrectification of the order is made out. Accordingly, it dismissed the application. It is against the said order,the present appeal is filed. 4 We have heard the learned counsel tor theparties. >. From the tacts stated above, the Tribunalcommitted no error in passing the order dated29.02.2009. The error apparent on the face of therecord means error committed by the Court or theTribunal|1n passingtheOrder|under|challenge.|Admittedly, the Tribunal has not committed any sucherror. In fact, even aiter fresh proceedings wereinitiated, the assessing authority, in the assessmentorder categorically states that it is a proceeding underSection 153A and when the order of assessment was|passed the Appellate Authority has set aside the same. ©It is only thereafter, they are seeking for rectification ofthe mistake. 6. In the facts and circumstances of the case, weare satisfied that there is no error apparent on the face of the record committed by the Tribunal, which calls for invoking Section 204(2) of the Act. Therefore, theTribunal was justified in dismissing the application. Wedo not find any infirmity in the order, which calls for our interference. | Accordingly, appeal isdismissed SD/-| JUDGE| SD/- JUDGE SS|