High Court Karnataka High Court

The Commr Of Income Tax Hubli vs Dalichand A Kothari Butter Market on 3 September, 2009

Karnataka High Court
The Commr Of Income Tax Hubli vs Dalichand A Kothari Butter Market on 3 September, 2009
Author: N.Kumar &B.Sreenivase Gowda
THE HON'BLE MRJUSTICE B.SRE.iENNA$E»VG«oxiiDA' 

1.

-1″

IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD

PRESENT

THE HON’BLE MR. JUSTICE N. KU1ViA-RT/: ” ”

AND

DATED THIS THE 3333 DAY OF SEPTEMBER

rm N0. 121f7g2oGsE– A

BETWEEN:

THE COMMISSIONER’

INc0ME;jI”A_x,
I~IUBLIs_.” * E

ITHE3′ :(3xaf9*IcER,

WARD – 1-mgk

» _ (B.’v*O«:s1gi%’.r.q%%.v.sHEs:+1AcHALA, ADV.)

S1§1V’;SI)/LILECHAND A.KoT1-1AR:,

BUTTER MARKET,

~ HUBLI.

{.BY”A_SRI.M.V.JAVALE, ADV.)

. . APPELLANTS

…RESPONI)ENT

THIS ITA IS FILED U/S 260«~A OF I.T.ACT, _.I.__961,
ARISING OUT OF ORDER D’I’.23.06.04 PASSEDV~.I’N_’I_II7FA

NO.1393/B/2003 FOR THE ASSESSMENT _
86, PRAYING THAT THIS HON’BLE CQVHHTA MAY BE

PLEASED To FORMULATEg’ SjUShS’TANAT’3A’LT¢
QUESTIONS 01? LAW STATED AND

THIS APPEAL COMING ON”‘FVO–R HE.>A.E:1ING ‘§’H’IS:’,

DAY, KUMARJ DEL1vERED”THE: F’OLi,_C:)WT_”‘N(§:.; M
iii. 9 G_._AIvi AE__TNIT.

1. This appeeII e».:SS-Sessment year

1985786″: ‘A — QT; 2 I
I._TI1eI’:’.Cof11Tf1ii-SS;iorIer of Income Tax has

cha11_er1ged–«,th;eIoorfectzoess of the order passed by the

Tax I–‘{p’p-e.1.late Tribunal, Bangalore Bench. A

cIé§t’ed”‘Q3I0:6::;2.004 where the tribunal annulled the

to aSSeS:Sment was barred by limitation.

é1SSeSsrne:ij; on the ground that the notice issued prior

I/

3. The assessee is a money lender. A search

action under Section 132 of the Income Tax

taken place on 19.08.1988. The

was completed under Section 14l3»(3_} if

147 on 30.03.1990 on the bee;s.le1~i the _i’in.lf0rlniiat.i:0hp

emanating from the seizedV’bo_oks of H “ac__c0un’t:. “‘i:n”‘appeal,”‘ 8

the said assessment was ‘>1-lowelVer., a direction
was given to the Assessi_1ngl’Oi’ficerlto’»is’sue fresh notice
under Section ‘asseszsee time to file the

return in Jiggrieved by the said
order;_:i the appeal to the lncome
Appellate Tribuwnall.A’– eyeballs order dated 07.01.2000, the

tribunal annulled’ the assessment. The tribunal upheld

order. W’iIi’he assessee filed a Miscellaneous

.Pet_ition”bvefore”the tribunal that the hearing notice was

not serV’ed””0n him and therefore, assessee be given an

it opportunity of being heard. The tribunal Vide its order

18.12.2000 recalled its earlier order dated

1 11 “”0’7.01.2000. Thereafter, hearing both the parties, the

11/,

tribunal by its order dated 28.02.2001 has held the
annulment of the assessment is not correct. However, it

upheld the directions to issue fresh notice fo:5imiak;i’i’1g

fresh assessment. The said order was challe

revenue before this Court
However, in the meanwhile
assessment had been comp–lete,d. sjsaidii
appeal came to aslllviinfructuous.

Thereafter, the  In the
impugned    is annulled on
the    and the proceedings

initiate’d.,_pwere by time calculating the

period from t»h_e”original proceedings. Aggrieved by the

“the present appeal is filed.

‘v’;l’l’he learned Counsel for the appellant

contends that the time is to be computed from the date

bofildlirection issued to the department to issue fresh

if “flriotice and to complete assessment. If the time is

computed from that day, it is in time. The tribunal was

in error in computing the time from original pro..eeed..ings

and therefore, the impugned orders require _i1i-teriference ~

As the tribunal has not decided.t»he._case.ioin’ Ru

matter is to be remitted back to.

consideration in accordanceayiiith laxhzi/’ an’d_on

5. The learned Coun..s_e.li*fsor themrevspondent
fairly submitted thatiiithe a.p.pr’oa:ch.v”0Lf;” -the tribunal is

CITOIICOLIS.

the aforesaid undisputed fact,
the asse..ssment_ip*roc:e’e.di11gs commenced in pursuance

of the’ dgirections’ issued, to issue notice of fresh hearing

to_ii’the”K:assessee and then pass appropriate orders on

circumstances, the period stipulated

under law “is to be calculated from the date of direction

iss_ued'”and not from the date of the original proceedings.

7i’he’refore, the order of the tribunal holding that it is

it Mloarred by time requires interference, consequently, the

assessment orders cannot be sustained is erroneous

and it requires to be set aside. Accordingly, we pass the

following order:

1)

2}

Appeal is allowed.

The order of the tribunal ll
proceedings are barred bytirne is’ he’reb__y”set’

aside and held that itis in time;

The tribunal hlasivllrsot one

merits. The matter_lis_ remitted ‘lba<;;1< to the
tribunal for fresir–oo«r1sideration. on merits
and in '.aer:or+ia1jaoewith law affording
reasonable lop_'portLin1'ty_tofboth the parties.

Ordered ' I

Sc!/-5
IudgE'

Sd/'.2
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