Rp/775/2013 Of Sri B Krishnappa v. The Commissioner Of Income Tax

IN THE HIGH COURT OF KARNATAKA AT|BENGALURU DATED THIS THE 8 DAY OF SEPTEMBER, 2015 PRESENT THE HON'BLE MR. JUSTICE VINEET SARAN AND THE HON’BLE MR. JUSTICE B.MANOHAR REVIEW PETITION NO.775/2013 BETWEEN: SRI B.KRISHNAPPA|NO.1091,|ANJANEYA TEMPLE STREET, KENGERI SATELLITE TOWN,BANGALORBE-560 060KARNATAKA| _. PRHTITIONBR> AND: 1]THE COMMISSIONER OF INCOME-TAXCENTRAL CIRCLE,C.R.BUILDING, QUEEN’S ROAD,BANGALORE -560 OO1.CENTRAL CIRCLE,C.R.BUILDING, QUEEN’S ROAD,BANGALORE -560 OO1. oD THE ASSISTANT COMMISSIONER OF|INCOME TAX, CIRCLE-9(1),|C.R.BUILDING, QUEENS ROAD,INCOME TAX, CIRCLE-9(1),|C.R.BUILDING, QUEENS ROAD, BANGALORE -560 OO1. _ RBSPONDENTS THIS REBEVIBW PHRTITION IS FILED UNDER ORDER RULE 1 OF CPC PRAYING TO REVIKBW THR ORDER DATED14.08.2012 PASSED IN ITA 1133/2006. THIS RBVIBW PRTITION COMING ON FOR ADMISSION|THIS DAY, THE COURT MADE THE FOLLOWING: ORDER This is a review petition filed by the assessee-respondent1nNITANo.1133/2006,decidedOT)14.08.2012. 2 |We have heard Sri A.Shankar, learnedcounsel along with Sri R. Ramamurthy, appearing onbehalf of the review petitioner as well as Sri Jeevan J.Neeralagi, learned counsel for the respondents-revenueand perused the record. 3.|The primary submission of learned counselfor the review petitioner is that this Court, while passingthe judgment and order dated 14.08.2012, had in factconsidered that the land in question totaling to | 31.19 acres was purchased, at the rate of Rs.1.61 lacsper acre for 23.19 acres and at the rate of Rs.2.60 lacsper acre for 08 acres, but while calculating the price ofthe total 31.19 acres land, this Court has ultimatelycalculated at the rate of Rs.1.61 lacs per acre for theentire 31.19 acres, which is against the admitted factsand price on record. It has further been contendedthat this Court, while passing the judgment, hasconsidered the share of the appellant to be 1/3[2<]>whereas the same was never admitted so by theassessee. Though the Assessing Officer had recorded afinding that the share of the appellant was 1/3[2<]but the.same was challenged and a specific ground No.S was_taken to that effect before the Commissioner of [IncomeTax|(Appeals).However,since.the AppellateCommissioner had allowed the appeal of the assesseeon different grounds and had not adjudicated thequestion of share of the appellant, the appellant did nothave any occasion to challenge such finding of the Assessing Officer. It is contended that the Tribunal hasalso decided the appeal filed by the Revenue in favour ofthe assesse and did not thus look into the question ofshare of the assessee, which remained in dispute as theassessee had never accepted his share to be 1/3[2<] a |It has, thus, been contended that this Court,while passing the order dated 14.08.2012, has wronglydetermined the share of the appellant at 1/3[2<]» CVT)though the said question was never argued by theappellants-revenue in the appeal. The other questionraised by the learned counsel for the review petitioner isthat while deciding the appeal, this Court hadconsideredthe|statementoT|M.R.Lakshmanapparecorded by the Assessing Officer, who did not considerthe statement of the purchaser Sri N.K.Mohta, and thusthe interest of the review petitioner has been adverselyattected. 5 |ori Jeevan J. Neeralagi, learned counsel forthe respondents-Revenue has accepted that there couldbe a mistake in the calculation of the purchase price of31.19 acres of land. He has, however, submitted thatthe asseesee had never claimed his specific share, andas such, in the absence of any such claim made by theassessee, the Court has rightly determined his share tobe 1/3[2<], aS there were three partners in the agreement.It is, thus, contended that with regard to other issues,except the purchase price of the land, no interference iscalled for. 5 |ori Jeevan J. Neeralagi, learned counsel forthe respondents-Revenue has accepted that there couldbe a mistake in the calculation of the purchase price of31.19 acres of land. He has, however, submitted thatthe asseesee had never claimed his specific share, andas such, in the absence of any such claim made by theassessee, the Court has rightly determined his share tobe 1/3[2<], aS there were three partners in the agreement.It is, thus, contended that with regard to other issues,except the purchase price of the land, no interference iscalled for. 6.|Having heard learned counsel for the partiesand on perusal of the record, it is clear that this Courthas wrongly determined the purchase price of 31.19.acres of land at the rate of 1.61 lacs per acre, whereas itshould have been Rs.1.61 lacs per acre for 23.19 acresand at the rate of Rs.2.60 lacs per acre for the remaining O8 acres. To this extent, the order|admittedly requires to be reviewed and modified. — TS|As regards the determination of share of theassessee at 1/3[2<], In our view, since the assessee had.never accepted his share to be so, and contested thesame by raising a specific ground No.5 in his appealfiled before the Appellate Commissioner, which groundwas not decided by the first appellate authority becausethe appeal of the assessee was decided in his favour oncertain other grounds, and so was it before the Tribunalalso, we are of the view the said question should belooked into and considered by the first appellateauthority itself. 8.|In such view of the matter, the order dated14.08.2012allowingthe.appealITA No.1133/2006 is reviewed and modified to theextent that the order of the Tribunal, as well as the.order of the first appellate authority, in the case of being | assessee are set aside and the matter is remanded to'the Appellate Commissioner to decide the appeal afreshin the light of the observations made herein above andto re-determine the purchase price of 31.19 acres ofland, as well as determination of the share of theassessee as per the agreement dated 23.03.1995, andalso to look into other contentions, as may be raised bythe parties before the Appellate Commissioner. The review petition stands allowed to the extent as indicated above.No order as to costs. TL Sd/- JUDGE| Sd/- JUDGE.