{N THE HIGH COURT OF KARNATAKES.' 1, '
CIRCUIT BENCH AT DHARWAI3 V %
DATED THIS THE 2531* r§A§}0P..NiARcé ";:<;p%9%'* __
PREsEI§T__ ' T» A
THE HOINPBLE MR L..._1\.LA§;§:_J{fr§§}£'i*1i'
THE HoN'BLE N:1§_ -MALIMATH
Ba1a'ji"--I'raderS*,V ' _
Namjoshé,Road,"' V
I/,~Rs.. AA « ..... .. v
' f1; .. Palankar,
3. "sp:Ec:s1§; xPa1anka.r,
24.? 1. %5shok Palankar,
'B31.-a_;'i'I'rade1s,
Manjashi Road, Gadag. ..APPELLAN'I'S
(By Sri Afihankar M.A1va, Advocate)
AND;
The Assistant Commissioner of
income Tax (INV), --.
Circle 2(1), Hubii. ..'RESF¥Ol\§E)_i§3P¥T V
(By Sri M.V.S1:1cshachala, Adyocatg
This ITA is filed under season 260A-otfithe Income Tax
Act, 1961, arising out of the Qrc'zer§'date:§1 29.S;2002"passcd in
I'I'A.No.98'7/ Bang] 199r fl1e:.asst;ssincnt year 1987--1988
praying to formulate the sail:-st£m.tia1ss.(;ucsiion of law stated
above and aliow the appeal anti set+asig_':1c----~the order of the
tribunal bcaxing :"xTA;r{c 93?»; Ba'nga1one/ 1994 dated
29.5.2002 0:1 t13;=:.s- valiilityi of asscssmeni for the assessment
year 1987;:--i93$%:t-;'i 'V _;
"Q:iE1*fOi' hearing this day, MANJUNATH
J., delivered tins fcx1'_io_\avit._1_g*:.._
JUDGMENT
_ has come: up with this appeal under
if the Income Tax Act, 1961 (for short the ‘Ac:t’) _
the concurrent findings of the csrder passed by
2 ~ assessing officer which has been confirmed by the
u”§(_”iiic)’i:z11r11issioI1er of Income Tax (Appeals), Hubli which has
been confirmed by the Income Tax Appellate Tfibunai,
Bangalore Bench in I’I’A.No.98′?/Ba11g/ 1994 for the
assessment year 1987» 1988. 6/
2. The orignal appellant died duxing the pendency of
this appeal. After his death, his L.Rs. are brought ormjecoxd.
According to the appcflant, the dcceascd«aQp&fiVm.:;§tVT..V’was
mmczm’ g a business in foodgram’ s and ”
under the name and style M]-slfialaji ‘ j
retums of income for the as§esé’3$:§éiit
admitting an income of Rs. –. iL=:1__ ordf:r:oi7:éiSse$:smcn’i V
was passed under,’ Scctijkz-.r9_VV:A””~~1¥¥3(I)(a’) “–o:1 _:§1’7.2.1988.
Thereafter, a notice uxfidtér .§ I’».thc Act was served
on :’?__he __ The assessment was
complétadé’ r/W. Section 14′?[144A of
mg; ‘as: by o:sqer”‘da’ied’ 27.3.1992. Being aggrieved by the
” by assessing officer, the appellant filed an
: =t};1t2 Commissioner of Income Tax (Appeals),
No.I’I’A.382/ Gdg, which appeal came to be
A disnciiséed on 29.4.1994.
3. Aggricvcd by the same, the appellant filed an appeal
__5befom the Income Tax Appellate Txibunal, Bangalore Bench,
in I’1’A.No.987/Bang/1994, which appeal was aiicwed and
sctwaside the order of re«asscssmc::xt against the respondent.
«V
Accoxtiingto the appellant, the appellant
loan. from the above five persons’ a§ti:§1a1_fi3′}:ATiV{‘.§sV:orj3y bis b T
income and the demand drafts
W .
mew’?
own name. On the other the.V’i3a_:t1.,'<_?Ma: 15=.3:v'g"'ger":in his V
statement has statedjizat by the
assessee and subseqiae£1t13?– the amount; in
cash into _the 1 circumstances,
the assessn::,en§§jVL'bwas an order has been
passeti;"'CI3x§iE1e1i;g:i11g appeal was filed by the
appciiant 'C4tv_L5'1z1:IjI"t;.'_;x1er of Income Tax (Appeals),
Hubli oiie..g;a., sthbéit no oppoztunity was given to the
a§:j:zelv1£§ntkVby.VthcAa$_sessing omcer and that actually he had
» through Vima} Kumar Agarwal fiom the above
by means of demarad drafts and that in
heébrefrblnzed the above said Rs. 5.00 lakhs to the above
V’ ‘esaigi fiféc persons and Later those persons were asscssees of
“.iz”1’c’6me tax.
5. It is also the case of the appellant that the Inspector
attacheé to the Departmcm has conducted a discrete
enquiry. In the discrete enquiry, it is reported that the
(V
appeliant had borrowed loan zfromnghc K
The department without consirigrfixg-gs ”
conducted by the Inspwm; ha s._ f§asscd;’ ‘
assessment on the ground fivcfpezsons are
fictitious persons ._ it izfisbmc of the
appellant.
6. appellant before the
shat there was no proper
sa11(§’1;io1a_ Vi§§+Vop:s11i;ig»_jt}f–asséssmcnt as required under law.
It is tbs appeiiant that the Income Tax
Appeflatc wiihout considering the gmtmds urged by
_ t11:s1vutWf;3:1eI’e is cozzapliance for H-=:–opc’;n.ing of the
ass;%ssi:n.¢i1t,”.’~I:1 the circumstances, the present appeal is
fiisd. ‘}
z The appeai is admitted on the following substantial
‘~quji§;-sfions of law;
I. Whether the tribunal was justified in law in
holding that the neticc issued under Section 148
of the Act imroking the provisions of the post-
amencicd section is valid in law under the facts
and circumstances of the aypellant case”
«V
II. Whether the tribunal was jéjstififzd:
holding that the Lgiandataly far ;
assuming ju1’isdictioii¢V11i:’_£iTéi’
Act, is comgéfiagl xtzndégfi thé ‘vfas:;ts3
circumstances of ~:-1ppefl£a:1_1;’
111. Whcthcrv tan; _tribu;:1a1’4″‘x%tasé>A’jusfificd in holding
that the addfiien / — as cash credit
San opportunity to
v Manager and
1: “VioE§afibn of the principal of
‘A ‘ ” jzifiififsc? _ — V
w;–___ “‘}§f}1Vét_h§’é2¢: manual was justifieti in law in
hqidirig ‘fhét the appellant is bound by the
A. staxt”e:’In1:’:£t made under Section 132(4) of the Act,
name to be assessed for cash credit of
§I§§s;5,ao,0oo/-?
2 .. ir..:_ Wham: the tribunal is justified in law in
holding that the interest under Section 139(8)
and 215 of the Act is leviablc on the facts and
circumstances of the case?
8. We have hctaxd the learned Counsel for the parties.
6″
arise since it is the case of the appellant”
bonowed loan through Vimal Kumar’ ‘the ‘ .
circumstances, he requests ‘ivto
passed byallthe authoritieafl ” A .4 VA u
10. The leazneei. fo:rWt}_3e 1eiie%*..tue_.Esupporting
the on:Eers of the the names shown
as creditors ofihe appefiaefi ilfrersons and as per
the has put the
money “:}<i§s__ on the same day, he
purcheseei _ by issuing self cheque.
'I'herefore, 4he.oonfe1:1.&s {hat no questions of law arises in this
. V. = A Veip;CseeiIe'a1:i{i.Af:}ae zequires to be dismissed.
heaxfl the ieamed Ceunsel for the pame' s.
\k*hatv_*.a7e. fiofice in this appeal is, the income 'Fax Appeiiate
AA did not consider the question raised: by the
'sapizeflant in not considering the mandatoxy Iequirement of
U fasszlzned jmrisdictéon under Section 148 of the Income Tax
Act in ozder to reopen the assessment. The income Tax
Appellate Tribunal in its order has stated that, though such
6/
11
persons through Vimai Ktlmaar Agarwal is a
or not.
13. In View of the subnzisfificani-0f.;;Vat’e
also of the Vifiw that instead of ren£a1_1ding thé j@1:.tc1fT;t<$ 'i!f1é;
income Tax Appcllatc is p1Wc$pmf i0i" uéz to remand
the matter to the the factual
position and also to c91;§irie;; _i1:{é mquiremeni: of
assumed _}'1i;i'i$';C§'_;3.(§?:3;O1I1;3._l1I:€¥.cY;i:' of the Income Tax
Act. ….
14. In Without answering
the questions W5 éappea}. and mmand the
for frwh consideration. It is
op€:z_1 fQr’«t};;e raise all the questions that may be
raised ‘b_ef():je i’hc«V’asseg’si:.ug ofiiccr.
Sdfw
Judge
sdii
Eaéga
‘E;ts*