Itta/287/2012 Of The Commissioner Of Income Tax - Iv v. Ch. Mohan Rao

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH ATHYDERABAD THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTAAND THE HON’BLE SRI JUSTICE K.C. BHANU I.T.T.A. No. 287 of 2012 DATE: 24.07.2013 Between: The Commissioner of Income Tax-IV,Hyderabad. … Appellant And Ch. Mohan Rao,Hyderabad. … Respondent This Court made the following: THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTAANDTHE HON’BLE SRI JUSTICE K.C. BHANU I.T.T.A. No. 287 of 2012 JUDGMENT:(Per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta) We have heard Sri J.V. Prasad, learned counsel for the appellant and gone through the impugned judgment and order of the learned Tribunal. This appeal is sought to be admitted on the following suggested question of law. Whether on the facts and circumstances of the case, theTribunal is correct in law in dismissing the department’s appealhaving held that the assessee is liable for capital gains tax on transferof his membership card of the Hyderabad Stock Exchange to aCompany? It appears that the learned Tribunal while deciding the entire mattercame to the fact finding that notice under Section 148 was not servedproperly and on that ground alone the entire proceedings were set aside. The learned Tribunal came to the fact finding that no satisfaction has beenrecorded by the assessing officer that the assessee was deliberately avoidingservice. Therefore, we do not think that we should interfere with the factfinding. Moreover, the learned Tribunal has held correctly that under Section292BB regarding service of notice in case of reopening under the provisionsof Section 148 does not apply. It appears that almost on an identical issue, we have decided anddismissed an appeal, being ITTA.No.134 of 2013 on 28.06.2013. We therefore do not find any reason to interfere with the impugnedjudgment and order of the learned Tribunal. While dismissing this appeal, we are constrained to observe that asthe learned Tribunal has dismissed the assessment proceedings merely onservice of notice under Section 148 of the Act, it should not have gone intothe merits of the matter. _____________________ K.J. SENGUPTA, CJ ________________K. C. BHANU, J