Vivek Agarwal, Kolkata V. D.C.I.T., Central Circle-2(4), Kolkata

ITA 123/KOL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6641 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 26-06-2019
• Assessment Year: 2004-2005
• Appeal Filed On: 24-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANKAR HALDER JCITSRDR
• Assessee Lawyers: A K TIBREWAL
• Keywords: Deemed dividend
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER ITA NO.123/KOL/2019 ASSESSMENT YEAR:2004-05 VIVEK AGARWAL DA-14, SALT LAKE CITY, SECTOR-1, KOLKATA-700064 [ PAN NO.ACMPA 9240 L ] / V/S . DCIT, CENTRAL CIRCLE- 2(4), AAYAKAR BHAWAN POORVA 110, SHANTIPALLY, KOLKATA- 107 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI A.K. TIBREWAL, FCA /BY RESPONDENT SHRI SANKAR HALDER, JCIT-SR-DR /DATE OF HEARING 26-06-2019 /DATE OF PRONOUNCEMENT 31-07-2019 /O R D E R THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2004-05 ARISES AGAINST THE COMMISSIONER OF INCOME-TAX (APPEALS)-19, KOLKATAS ORDER DATED 19.11.2018 PASSED IN CASE NO.174/CIT(A)-19/2014-15, INVOLVING PROCEED INGS U/S. 147 R.W.S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEE APPEARS TO HAVE RAISED HIS MULTI FO LDED PLEADINGS SEEKING TO REVERSE BOTH THE LOWER AUTHORITIES ACTION TAKING RE COURSE TO IMPUGNED RE-OPENING / RE- ASSESSMENT FOLLOWED FOR INTERIM DIVIDEND ADDITION O F 18,61,800/- IN ISSUE. THE ASSESSEES DETAILED PAPER BOOK RUNNING INTO 25 PAGE S MAKES IT CLEAR THAT THE ASSESSING OFFICE HAD SAID SEC. 148 / 147 RE-OPENING MECHANISM FOR THE REASON THAT THE ASSESSEE HAD RECEIVED THE IMPUGNED DEEMED DIVIDEND ON 05.04. 2003 AT 16,66,311/- FROM M/S EAST INDIA SECURITY LTD. WHICH INVOLVED VIOLATION OF SEC.115-O I.E. NON PAYMENT OF DIVIDEND DISTRIBUTION TAX. THE ASSESSEES PAPER BO OK ON THE OTHER HAND AT PAGE 1 SUGGESTS THAT THE IMPUGNED DIVIDEND INVOLVED RECORD DATE / DIVIDEND WARRANT DATED ITA NO.123/KOL/2019 A.Y.200 4-05 VIVEK AGARWAL VS. DCIT,CC-2(4), KOL. PAGE 2 30.03.2003 I.E. RELEVANT TO ASSESSMENT YEAR 2003-04 THAN THE IMPUGNED ASSESSMENT YEAR 2004-05. THIS CLINCHING FACT HAS GONE UNREBUTT ED FROM THE REVENUES SIDE. I QUOTE U/S 8(B) OF THE ACT IN THIS BACKDROP MAKING I T CLEAR THAT SUCH A DIVIDEND IS DEEMED TO BE INCOME OF AN ASSESSEE IN PREVIOUS YEAR IN WHICH THE SAME IS UNCONDITIONAL MADE AVAILABLE BY THE COMPANY TO THE ENTITLED MEMBER. I MAKE IT CLEAR THAT THE ABOVE DIVIDEND WARRANT IN QUESTION IS DATE D 30.03.2004 ONLY. I ACCORDINGLY HOLD THAT THE LEARNED LOWER AUTHORITIES HAVE ERRED IN TREATING THE IMPUGNED DIVIDEND AS INCOME OF THE ASSESSMENT YEAR 2004-05 AND NOT GOING BY THE CRUCIAL FACTS OF THE DIVIDEND WARRANT TO CONCLUDE THAT THE SAME COULD NO T HAVE BEEN TREATED AS TAXABLE INCOME OF THE RELEVANT PREVIOUS YEAR. THAT BEING TH E CASE, THE ASSESSING OFFICER IS HELD TO HAVE WRONGLY ASSUMED SEC. 148 / 147 PROCEED INGS. I GO BY PRECEDING ANALOGY TO HOLD THAT THE IMPUGNED RE-ASSESSMENT ITSELF IS N OT LIABLE TO BE SUSTAINED. THE SAME IS ACCORDINGLY QUASHED. THE ASSESSEES OTHER GROUNDS O N MERITS ARE RENDERED INFRUCTUOUS. 3. THIS ASSESSEES APPEAL IS ALLOWED IN ABOVE TERMS . ORDER PRONOUNCED IN OPEN COURT ON 31/07/2019 SD/- (S.S. GODARA) J UDICIAL MEMBER KOLKATA, *DKP/SR.PS - 31/07/2019 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-VIVEK AGARWAL,DA-14, SALT LAKE CITY, SEC TDOR-1, KOLKATA-64 2. / RESPONDENT 3. ' % / CONCERNED CIT 4. % - / CIT (A) 5. & ))' , ' / DR, ITAT, KOLKATA 6. + / GUARD FILE. BY ORDER/ , /TRUE COPY/ ',