The Commissioner Of Income Tax vs Aslam Ulla Khan on 4 January, 2010

[Cites 2, Cited by 8]

Karnataka High Court

The Commissioner Of Income Tax vs Aslam Ulla Khan on 4 January, 2010

Bench: D.V.Shylendra Kumar, N.Ananda

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IN THE HIGH mum' on KARNATA;;.Ai%V%%%%k%j
AT BANGALoRE   '
Dates} this the 4th day of Jamary, 2e'io' ' :1  "
PRESENT V " A V V

THE Honrnm am JUSTICE  v.__sH§L.Ei6nRa ;§t3.r.1a,x2
THE Horrnm am JU$1'1CE j4xV"a.:aANnA'~ 

Income V'I'a.x: Apggggﬁf ._ K-:§._V 1'

Income _?':§:c 449; 4148 & #{So (12004

!nITA   "

Setween:  ' '

E.

THE comaissxoyssgzz QI?'"_i;NC{}ME: TAX
5511. SHILPASHREE  '
\r;:.;3H¥.aRANYA. COMPLEX
*ﬂS~H'§f_ESHWARANAG!XR

'V " ._Ma's0RE g~£:'sf7o 003

 .T_I-'FIVE : §4=$,O§3E.fi€AX 0mc9:R

" r WA'RDw'2;j'CALWERY PARK ROAD

AMANDYA. "  A APPELLANTS

[By Sri. M V Seshachaia, Adm]

%s2i:gs1,m ULLA KHAN

'3;<:> }'s;'£EHB{)O8 KHAN @ SABJAN

V% "";:59,__ta4c ROAD, ASETATE TOWN
'MANBYA.  RESFONDENT

[By Sri A Shankar, 8131 M Lava, 8131 S Amgxamaiai
and Sri M R Shailcndra, Advs.]



2

T1338 APPEAL IS FILED UNDER SECTION 260A OF THE
ENC-OMB TAX ACT, 1961, PRAYING TO SET ASIDE 'THE GREEK'

DATED 2'.?'.02.2OC?4 PASSED iN [TA NO. 1264/BANG/QOCQVTFUTR
THE ASSESSMENT YEAR I991-92 AND ETC,     

In ITA No. 449 of 3004

Between:   ._

1. THE COMMISSIONER OF' INCOME  .. 3
55x1, SHELPASHREE V  
VIDHYARANYA COMPLEX T A
VESHVESHWARANAGAR

MYSORE - 570 008

2. THEiNCOME TAX oF§«"i(:;«;a2  .
wAR:3--2, CAUVERY PAR--I<: ROAD ;  AA 
MANDYA.  V  2  'APPELLANTS

  NI    

SR1 ASLAMEJLLA KHA;-é'j' '* A. V%  j   "
3,10 MEHBOQB ';<.;«1AI»:.,@' S;P~.BJA_i'£V 
#59, MC ROAD; A::ETA"rE 'rQw«I§:=

MANDYA; . _ _ RESPONDENT

V' _ A M Lava, Sri S Annamaiai ' V. A . Sri M R Shaiicncira, Advs.] "«£':a1j3v-.}s;P,15:e:e;L..~is FILER UNDER SECTIQN 260A OF' THE £Nco'mE~TAx 1961, PFEAYiN€?r TO SET ASIDE THE ORDER ;r:>A*rE9---.2?.Q2;2oa:a4 PASSED IN ms; in 2265/Ema/2302 FOR mg ASSESSMENT YEAR 1997.93 AND ETC', ff ' ii;.1%T..a.;x'c. of 2004

-- ,::: THE commissierme or HHICGME TAX 525;' 1, SHILPASHREE VEDHYARANYA COMPLEX VISHVESHWARANAGAR MYSORE - 5?C} 008 4 THES APPEAL. IS PTLEED UNDER SECTION 260A OF' THE ENCOME TAX ACT, 1961, PRAYiNC3 TO SET ASIDE THE OREER DATE3 2'?.O2.Z2004 PASSED IN ETA NO. 1265/BANG/$3002 TFOR THE ASSESSMENT YEAR I996=~9'}' AND E'I'C., THESE APPEALS ARE COMING ON FOR HEA.R£«NC{ DAY, SHYLENDRA KUMAR J., DELIVERED THE FOLLOW.iNGi'~ JUDGMEn$&eafe RE: ITA N0 451 OFZOO4: b' i V ' Appeal by the revenue "ts1't1e income Tax Act, 1961 [t2)rLé=.;!e_1<>I't_:"A 'eeseeeee is an individual and '(he The asseesmefxt in quesiioii afier reoperling by issue of rtetiee unde1"~* _f_;ecti6;1 the Act: and canciuded in terms v«:;§:SveL{:*£.i0r1 §§f__£}f1e Act.

2;' The éeterrnizaeci is at Rs 2.30 lakh, which is the séxme as had been declared by the assessee " 'A"g§t§de:LtI1e"vt'e1unta1y disclosure of income scheme, 1997, c§i_SeIGsi:'1g this ameunt as unéiscloseé income fer the gs-wssment year in question.

ex"

wuw«»vn.w 6 other reievant provisions of the Act, resultixxg in The tax liamlity en a sum of Rs 1.30 iakh akong with interest and penalty for delayed payment.

6. Aggrieved assessee appealed tq .tl1e4c0Iﬁﬁise§i_o'z ier'_'Qf K V' income tax {appeals} but without :'sncee'§s. 77:

further appeal to the income ~appe'I1a§;e' vmjet with success, as the 13:jbuna1----- uf'é§L1I:ici feLi1t;»~._wiifi1 the reopening, particularly, the " -followed for reopening, .. é§_t3;"'vVet)%nso2'1ance with the in-§é1':V:i;}e{e11 and provided for by the Supreme had been applied by this "Court otiiei'-v-eases. The tribunal was 3150 of the reason assigned for reopening and

-- Vv reeoeéteéi €)O0kS of the department, which reads as

-- . i .. « under:

* _ V. the tmc and interest on the amount declared under VDIS was paid beyond the due date, as per the cﬁreetions of the OFT, the assessment " have been reopened to bring to tax the income escaped assessment. Hence, I have reason to believe that ineeme chargeable to tax has escaped assmt.

N wvwvwwwmmwmwwﬁ rzeznmmmm %m%M'W'm% war mmmwmammwe Wwam %...»WeM$££ W9?" mssemieee §"i$§§§W &:;€"3W&"a 7 was more in the nature of change of opiI1ie1}«.._5ey;V""£hVe"'«3 assessing authority without due application the reopening was not susiainablegzhi matter, the tzibunai aliowed the aijpeal, se:'v--"-aside V order passed by the assessing are e ﬁ§mn1'ng order passed by the first'

7. 1: is agg1'i<?v.::e__1,y '::§>r(:1:c:f}~..gi' -t};;;e°'tribunai, the revenue is in » " Q AV

8. 'Fhei_j admitted to examine the following qtiesfien' of' ~. _/,, ' ' ' .

Tﬁbunal was correct in 'holding that the Assessing officer had to _ Etjecrirgiv reasons and based on those farm his opinion that the income escaped assessment by relying an * judgments of this Hon'b£e Court in " _11-33 IT}? 199 and 155 I771? 748 before re- bpening assessments when Section 14?' has been amended by Direct Tax Laws Amendment Act, 1989, w.e.f from 1.41989 by substituting the words 'for reasons to be reosrded by him in writing is of the opinion' with the words 'has reason 30 believe".

(2)

{3} 8 Whether the Assessing officer was correct in tanking into account the declaration ﬂied by the assessee under the W318 Scheme and had reasons to believe that the"

income chargeabbe to tax had L" A assessment and correctly brought the said amount declared _ scheme, by re-opening' a.s.=;easrr;»e1:-%.t. M holding that any declaration"'which17%ac£3 been ﬁled under the'--V19_IS sciL«3meVAcarii:ét' be used as czdmissibZe._e':1§dencee_fof purpose of this; when the scheme has ---4__;be_er--s._ to _ be net

9. We have heard. "'E';*.,r':1vfeﬂV " Iearned standing counsel fer ﬁeverxxgé'; and Sri A Shankar, iearnecl counml tbfilgeasse$seé-respondeJ:1t.

10. ' ! fOIf -. ._appel]ant--reVenue., Sri eounsel for the revenue, s2_.1bmits_ that 'the ﬁhas committed an ermr in "j" .. ~ matter and $e%:tiI1g aside a W611 'éarder gassed by the assessing authority and f L' by _ %t::.%e% " first apgellate authority. Leaxned counsel submit that reopening was we}: withizl the 10 the commissioner, who had. directed him to Concluded assessment for the year 1991492, _ View also, dares not constitute an the» scope ()fS6(:ti()I1 147 ofthe Act. A ' '4 é

12. Apart from this, Sri Shaﬁizgr, ieagéyea the respaoxidenvassessee sféhcﬁon' itself was defeculve, for sancﬁon was from the commiés-5siQneriA"'6i'.* Whereas the autI1ozize§i"w'foi*j'.V.Af.¥§iIi§.ttic:gA..§¢7as only the joint commissi€}"nAei*,4'_ commissioner W111 have to act asthe éippellaﬁgt é'Li_¥f.h5;E'ity against the orders passed '¥:5'y< _t.i1e- aiithurity.

13." . Th§sV'S1'i_bI}:1i$'si0n is only reiterating the circumstance Vtiﬁzat was baé in law and therefore we

-- 'C;;-1§:1r1€;t--.4_acé'€pt this submission made on behalf of the Iv ' ' V V. ap1§e:3iéﬁt--revenue.

in the result, this appeal is dismissseé, answering the first substantial question of Law :£;1 the nagative, N Wﬂ<'&w""0OhV'0'x\«?9~ :xm;~":.mm4swm'**aemr*"mKmuaK'*§n L§Wl"3n?HEﬁ wwmmw war" mmmwmimmw. Wawm mwmm U?" §%M§&s1§%%ﬁ%§'ﬁ%%ﬁ% §"'%§ié¥"'€ {.:€33.§§§"§ 11 agaizlst the: appeilaniwevenue and leaving open the ~ V two questions, as they become virtually acmemi'€._: ' "

accordingly they are not answered.

RE: ma No 449 ,44s 83 450 or:-§?(§a4: L_ x

15. in mass apﬁls, expept "€16 assessment years in quesﬁ(§§i'e;1:;d of incmae, an other facts and with the fads and appeal pTA1%)45;orQ§g§]§aa:h§ﬁm@e;&£:hevmqxumxms mentioned the said appeal, these appeals are icientical terms.

Sdh JUDGE Sci/-3 IUDGE

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Karnataka High Court

The Commissioner Of Income Tax vs Aslam Ulla Khan on 4 January, 2010

Bench: D.V.Shylendra Kumar, N.Ananda