Davangere Maganur Bassappa and Sons vs Income Tax Officer

K.L. Manjunath, J.—Sri. Aravind, is directed to take notice for the respondent.

Heard the counsel for the parties.

The assesses has come up in this appeal challenging the legality and correctness of the order passed by the Assessing officer which has been confirmed by the Commissioner for Income Tax (Appeals) and further affirmed by the Income Tax Appellate Tribunal, Bangalore Bench in ITA No. 1354/Bang/2008 for the assessment year 1999-2000 dt.10.7.2009.

The facts leading to this case are as hereunder:

The assessee is a partnership firm. On account of the dissolution, the assets of the firm are distributed among its partners. Based on the same, the Assessing Officer has calculated the capital gains payable by the assessee. The assessee contended that, it is not liable to pay capital gains. The Assessing officer has rejected the claim of the assessee. In the appeal preferred before the Commissioner of Income Tax, the Commissioner of Income Tax (Appeals) confirmed the findings of the Assessing officer in regard to capital gains payable by the assessee. The Commissioner of Income Tax (Appeals) also calculated the quantum of capital gains paid by the partners of the firm on account of the dissolution of the firm based on the material produced by him. Accordingly, some relief has been given to the assessee. Against which the assessee filed a second appeal before the Income Tax Appellate Tribunal. The Income Tax Appellate Tribunal also held that the assessee is liable to pay the capital gains. In regard to the quantification of capital gain is concerned, it has given a clear finding that the assessee did not raise as a ground in the appeal Memo. Accordingly, it is rejected. Against which, the present appeal is filed.

So far as the payment of capital gains by the partners on account of distribution of the assets of the firm due to dissolution, the same is covered by the Judgment of this Court in Novartis AG Basle Vs. Additional Commissioner of Income Tax, . Therefore, the said point has to be answered against the assessee.

So far as the quantification of the capital gains are concerned, we have also seen the grounds of appeal preferred by the assessee before the Income Tax Appellate Tribunal. In the grounds of appeal, the same has not been raised by the assessee. The Income Tax Appellate Tribunal, in para-8 of its order has clearly stated that such ground has not been raised by the assessee. The Commissioner of Income Tax (Appeals) in detail has considered the case of the assessee. Having considered the case of the assessee in detail, the Commissioner of Income Tax (Appeals) has also given some relief to the assessee. Therefore, we are of the view that the assessee having satisfied with the relief granted to him by the Commissioner of Income Tax (Appeals), bound to raise the question of quantification before the Income Tax Appellate Tribunal. But now having not raised such a question before the Income Tax Appellate Tribunal, it is not open for the assessee to raise such a question for the first time before this Court in this appeal. Therefore, this appeal requires to be dismissed,

Accordingly, the appeal As dismissed.