Karnataka High Court
Commissioner Of Income Tax vs M/S.Islamic Academy Education on 4 January, 2011
Bench: N.Kumar, Ravi Malimath
IN THE HIGH COURT OF KARNATAKA AT BANGALQRE
amen THIS THE 4"' DAY OF EANUARY,
PRESENT
THE HOEWBLE MR. JUS.TIC_E4 i\i.i1<£}'ii(%'itx%>§,»' 'V
AND
THE HON'BLE MR. J'{J.$'i1§:E R'Av__I
INCOME TAX ARRE}§LiNo.%217/203.0
BETWEEN; ' i V A
1.Commissiom-:r__of I;i'1"<':E)"r:*@ 'V Bangaiore ' 2: _ Centre} .~i?'eyélxf_1u'e Bug'i_din.gs;_" V Queens Road, » _ A Ba{1.g.ai_d're':_ '4» 001 R
2. Asslstamfi CC'.i'i1r}'iESS4i"Oifi'E3'r of' Income Tax, c::rc!.e-«.1(1--} ~ = Mang'aJ4oii'e. 7 _ ' , --. :APPELLANTS (Bx;"Sr;..E.:'5.anm3Vt'h'E"'InVdrakumar, Senior Adv.) Mangayivore.
i'?s,{§§% Esiarfiiifij. zicademy Education, Nib;-an::'nda'::agar, :RESPONfiEf'éT T?'iiS appeai is flied under Section 260--A ef the Income Tax Act, 1963., for the Assegament year 2004» _,_2;:O£)5, praying to formuéate the substantial questieris of iaw % //' b,/ stated therein and to allow the appeal and to pass Consequentiai orders in the interest ofjustice andvequity. This appeal Corning on for orders this J.,. delivered the following:-- " .. r "
JUDGMEPLI This appeal is by theflevenue.e'halleng'ii:ro':4theljorderd; passed by the Tribunal whichu"l°.a_s' u_pheld-.the'V'appi-eel of the assessee and dismissedtehe thefiievenue.
2. The_:'assess'ee"'V§::tilled a return of income for nil income in the statusJo_f__Vtru'st:"£31n:_2_tlt flat was conducted in the premises S.132 of the Income Tax Act, 196t--{:tor Subsequently, notice under S,1'5_3'--'Atrof the issued. On 27.2.06, assessee filed ~Ain-response to the said notice declaring the total "in_o'o--rf:fie""o'i5'_"_5?"52;~t:§'1';41336/» in the status of association of V . perséornsfitfiéj. As per the return of income Filed by the it ._assre.ssee", the assessee was liable to pay self assessment .' t'ia;V<"'oi' ?1,G2,63§-449/w, iiowever, the assessee failed to "pay the eaici tax. He requested the authorities to adjust:
the said amount of tax out of the seized cash from the Trust office and aiso from the Chairman's reside_n<:e-..dfu.ring the course of search. Accordingiy it was 24.12.07, the assessment ordermycyame:to*'a:e,f5'assed__in".
which the assessing authority d.ete:;'m.i}3ed»the" in'eGmei1.t_of the assessee at ?61,16,71*O/«ax in the' status' terms of the assessment order,-..:th--e_V assesslee was entitled for refund of ?74,67,V1'3_z7/+'a.s tifi'e're'V--yya:s'iexcess payment.
3. be passed under 3154 ehhan'::'i.niQ"'the under $244 of the Act at ?8,79v}V:i.§V2/Latinas of reeffcvaicuiation of the interest underESt.V2--3<§~A Avssesseeé. fiied an appeai chaiienging the .' inr.:om.e 'determined by the assessing authority. The same ~:/vfa-sraV'I'ioé%2a2ve.d'.'y;;h"tiowever, interest under S.244--A was not g:°aht.eé:?_ to the assessee whiie giving effect to the CommEssioner's order. On 51.09, a notme came to be 'ii-:ss'u'ed to the assessee under 3.154 of the Act contending "that interest under S.244~A of the Act on cash seized was E wrongly allowed while granting refund. The assessee contested the matter by fiiing the repiy. On order came to be passed under assessee is not entitled for interest on ta};"aV'djeste'd.tout"oft" seized cash. The assessee filed-.'_'_'la'lppeai_° Commissioner of Income Tia;{;'-..,challienging it-he'~..;s'a'id "order',"i Appeal was partly allowed.
5. The before the Income Tag: 'linsippeiliateii assessee also preferred the very initiation of 'hearing both the appeals, the Trlibtwin-all ~-"order under S.154 cannot be rnade on de'bat'abl'e issue of facts and law. The as'sje:ss:,i--ng 'officeritfahivhave jurisdiction under 5.154 only in _ ao'_case*'«yvr;ie':<e: the mistake is clear, distinct and apparent °rro_rn thve.'re.g_:o:rdi Such factual aspect was not available in the :"e§:o':rci and therefore, the assessing Officer could not A i;aye_.withd§awn the interest under 5.244%. by neiding that the seized cash was adjusted against seif assessment tax "thunder Srléifi-A(1} and accordingly the appeal filed by the ii '£1!//.»' ' be set aside and substantial questions of law do arise for consideration in this appeal.
7. We do not see merit in the..SaV_i_d.._co.n'tentionRV' The facts disclose the tax was not paid :Va"s._se_if tax in pursuance of notice iis_sued"bAy"the adI,at--i'.o:*ities'l'; The'; assessee filed a return after ficvcordincj to the return filed, he |ia_lo'le:_ iincornxe tax at ?1,02,63,449/--. He to adjust the tax amount oiiithgel from the office of the Trust? the Trust. However, subseq'u'e'ri't.l$j:i. came to be passed reducing the is how, the assessee was entitled A C is in that context, the question for co'i3isild'7er%i_*;.i_onlis'.whether the said refund is to be done with inte"-resijiasv Eontempiated under 8.244%? 9 S.24rii~A specificaiiy provides for eaymeiit of the amount of refzirid, Sebeclauses (a) and (5) gdrovidefor E. fig///...