NALANDA ENTERTAINMENT & RESORTS PVT LTD, MUMBAI V. I.T.O. WARD-2(2)(3), MUMBAI

ITA 1935/MUM/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88280 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 11 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Next Hearing Date: 26-11-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 09-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PREMANAND J
• Assessee Lawyers: PRAKASH JHUNJUNWALA
• Keywords: Deemed dividend
• Section: 143(3); 27

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI , , . , BEFORE SHRI VIJAY PAL RAO , JM AND SHRI D. KARUNAKARA RAO, AM ./I.T.A. NO.1935/MUM/2011 ( / ASSESSMENT YEAR : 2007-08 ) M/S. N ALANDA ENTERTAINMENT & RESORTS PVT. LTD. 5, JOLLY BHAVAN NO.2, GROUND FLOOR, 7, NEW MARINE LINES, CHURCHGATE MUMBAI-400 020. / VS. INCOME TAX OFFICER WARD-2(2)(3) MUMBAI. ./ ./PAN/GIR NO. : AABCN 2013 Q ( /APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI PRAKASH JHUNJUNWALA ! / RESPONDENT BY : SHRI PREMANAND J. - DR '#$ ! % / DATE OF HEARING : 05/02/2015 &'( ! % / DATE OF PRONOUNCEMENT : 13/02/2015 ) / O R D E R PER VIJAY PAL RAO, JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 18/01/2011 OF CIT(A) ARISING FROM PENALTY ORDER PASSED UNDER SECT ION 271(1)(C) FOR THE ASSESSMENT YEAR 2007-08. 2. IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) AN ADDITION OF RS.25,88,013/- WAS MADE ON ACCOUNT OF DEEMED DIVIDEND UNDER SECTIO N 2(22)(E) OF THE INCOME TAX ACT. THE AO HAS LEVIED THE PENALTY UNDER SECTION 27 1(1)(C) VIDE ORDER DATED 29 TH JUNE, 2010 AGAINST THE ADDITION MADE ON ACCOUNT OF DEEMED DIVIDEND UNDER SECTION 2(22)(E). 2 ITA NO.1935/M/11 3. WE HAVE HEARD THE LD. AR AS WELL AS THE LD. DR A ND CONSIDERED THE RELEVANT MATERIAL ON RECORD. AT THE OUTSET WE NOTE THAT IN THE QUANTUM PROCEEDINGS THE TRIBUNAL HAS SET ASIDE THE ISSUE TO THE RECORD OF THE CIT(A) FOR DECIDING THE APPEAL OF THE ASSESSEE ON MERITS AFTER CONDONING THE DELAY IN FIL ING THE APPEAL BEFORE THE CIT(A). WE FURTHER NOTE THAT FOR THE ASSESSMENT YEAR 2008-09 A N IDENTICAL ISSUE CAME BEFORE THIS TRIBUNAL AND THE TRIBUNAL IN THE QUANTUM APPEAL IN ITA NO.6084/MUM/2 011 FOR ASSESSMENT YEAR 2008-09 VIDE ORDER DATED 28/3/2012 HAS DELETED THE ADDITION MADE BY THE AO UNDER SECTION 2(22)(E) IN PARA-7 AS UNDER :- 7. THUS RESPECTFULLY FOLLOWING THE PRINCIPLE AND R ATIO LAID DOWN BY THE HONBLE SPECIAL BENCH IN THE CASE OF ACIT VS. BHAUMIK COLOU R (P) LTD. (SUPRA) AND THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. UN IVERSAL MEDICARE PVT. LTD. (SUPRA), WE HOLD THAT THE ADDITION OF RS.5401,948/- ON ACCOU NT OF DEEMED DIVIDEND CANNOT BE SUSTAINED AND THUS THE GROUNDS OF APPEAL OF THE APP ELLANT ARE ALLOWED. 3.1 WE FURTHER NOTE THAT THE SHARE HOLDING PATTERN REMAINS SAME IN BOTH THE ASSESSMENT YEARS I.E. 2007-08 AND 2008-09. IN VIEW OF THE FACT THAT THE QUANTUM APPEAL HAS BEEN SET ASIDE TO THE RECORD OF CIT(A) A ND FURTHER FOR THE ASSESSMENT YEAR 2008-09 AN IDENTICAL ISSUE HAS BEEN IN FAVOUR OF TH E ASSESSEE. THE PENALTY LEVIED AGAINST THE ADDITION ON ACCOUNT OF DEEMED DIVIDEND IS NOT SUSTAINABLE AND HENCE DELETED. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 13/02/201 5. ) ! &'( ' * +# , 13/02/2015 ' ! -$ SD/- SD/- (D. KARUNAKARA RAO) (VIJAY PAL RAO ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER '.$ MUMBAI; +# DATED 13/02/2015 . # . ./ JV, SR. PS 3 ITA NO.1935/M/11 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. '/ ( ) / THE CIT(A)- 4. '/ / CIT 5. 0- %#1 , 1 , '.$ / DR, ITAT, MUMBAI 6. -2 3$ / GUARD FILE. ! ! ! ! / BY ORDER, % % //TRUE COPY// ' '' ' / !# !# !# !# $ $ $ $ (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI.