J.U. Kulkarni, Nashik V. Income-tax Officer,

ITA 1991/PUN/2016

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9678 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 13-12-2018
• Assessment Year: 2008-2009
• Appeal Filed On: 06-09-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M K VERMA
• Keywords: Deemed dividend
• Section: 2(22)(e)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT . / ITA NO.1991/PUN/2016 / ASSESSMENT YEAR : 2008-09 SHRI J.U. KULKARNI, ANUGRAH, T.A. KULKARNI COLONY, SADHU WASWANI ROAD, NASHIK-422 002 PAN : ABRPK1388H ....... / APPELLANT / V/S. THE INCOME TAX OFFICER, WARD-1(4), NASHIK. / RESPONDENT ASSESSEE BY : SHRI NIKHIL PATHAK REVENUE BY : SHRI M.K VERMA / DATE OF HEARING : 13.12.2018 ! / DATE OF PRONOUNCEMENT : 13.12.2018 / ORDER PER R.S. SYAL, VP : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSED BY THE CIT(A)-1, NASHIK ON 29.06.2016 IN RELATION TO THE A SSESSMENT YEAR 2008-09. 2. THE ONLY ISSUE RAISED IN THE MEMORANDUM OF APPE AL IS AGAINST THE CONFIRMATION OF THE ADDITION OF DEEMED DIVIDEND U/S 2(22)(E) OF THE 2 ITA NO. 1991/PUN/2016 A.Y.2008-09 INCOME-TAX ACT, 1961 (HEREINAFTER CALLED `THE ACT) AMOUNTING TO RS.33,36,513/- IN THE HANDS OF THE ASSESSEE. 3. BRIEFLY STATED, THE RELEVANT FACTS OF THE CASE A RE THAT THE ASSESSE IS A DIRECTOR IN M/S.VAIBHAV ENGINEERING PVT. LTD. HOL DING 47.09% OF SHARES. THE ASSESSEE IS ALSO A PARTNER IN M/S. SAPT SHRUNGI SWITCHGEAR, IN WHICH HE HAS SHARE OF 25%. DURING THE SCRUTINY A SSESSMENT PROCEEDINGS IN THE CASE OF M/S. SAPTSHRUNGI SWITCHG EAR, IT WAS FOUND THAT THE FIRM HAD RECEIVED A LOAN OF RS.2,90,29,571 /- FROM M/S. VAIBHAV ENGINEERING PVT. LTD. THE ASSESSING OFFICER OF THE ABOVE FIRM TREATED THE LOANS AS DEEMED DIVIDEND U/S. 2(22)(E) OF THE ACT IN THE HANDS OF M/S. SAPTSHRUNGI SWITCHGEAR. THIS ADDITIO N WAS DELETED BY THE CIT(A) HOLDING THAT DEEMED DIVIDEND SHOULD BE ASSESSED IN THE HANDS OF THE SHARE HOLDER. THE ASSESSING OFFICER, A CCORDINGLY, MADE ADDITION OF RS.33,36,513/- IN THE HANDS OF THE ASSE SSEE U/S. 2(22)(E) OF THE ACT. THE CIT(A) UPHELD THE ADDITION. 4. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE LEVANT MATERIAL AVAILABLE ON RECORD. THE LD. AR, AT THE VERY OUTSE T, FAIRLY CONCEDED THAT THIS ISSUE IS NO MORE RES-INTEGRA IN VIEW OF THE DIRECT JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF SHRI SAHIR SAMI KHATIB VS. INCOME TAX OFFICER, (2018) 98 TAXMANN.COM 453 ( BOM BAY) IN WHICH SIMILAR ISSUE HAS BEEN DECIDED AGAINST THE ASSESSEE . IN VIEW OF THE CANDID ADMISSION MADE BY THE LD. AR, I UPHOLD THE I MPUGNED ORDER. 3 ITA NO. 1991/PUN/2016 A.Y.2008-09 5. NO OTHER ISSUE FROM THE MEMORANDUM OF APPEAL WAS TAKEN UP FOR ARGUMENTS BY THE LD. AR. 6. THE ASSESSEE HAS RAISED AN ADDITIONAL GROUND TO THE EFFECT THAT ITO, WARD 3(1) NASHIK HAD NO JURISDICTION TO ISSUE NOTICE AND HENCE, ASSESSMENT SHOULD BE SET ASIDE. IN SUPPORT OF THIS CONTENTION, HE RELIED ON REPLY GIVEN BY THE INCOME TAX DEPARTMENT UNDER R TI ACT DETAILING JURISDICTION OF THE ASSESSEE FROM TIME TO TIME. AS PER THE REPLY GIVEN UNDER THE RTI ACT, THE JURISDICTION OF THE ASSESSEE WAS WITH CIRCLE-2, NASHIK FROM 16.09.2011 TO 12.02.2015. THIS WAS OPPO SED BY THE LD. DR. 7. I HAVE HEARD BOTH THE PARTIES AND GONE THROUGH T HE REPLY GIVING DETAILS OF JURISDICTION OF THE ASSESSEE. ON A SPEC IFIC QUERY, LD. AR SUBMITTED THAT ASSESSEE FILED RETURN WITH INCOME TA X OFFICER, WARD 3(1), NASHIK WHO ISSUED THE NOTICE ON 08.10.2013. THE LD. AR ALSO ADMITTED THAT DURING PROCEEDINGS BEFORE THE ASSESSING OFFICE R, HE NEVER RAISED ANY OBJECTION REGARDING JURISDICTION OF THE ASSESSI NG OFFICER. IT IS ONLY BASED ON REPLY RECEIVED BY ASSESSEE UNDER THE RTI T HAT THE QUESTION OF JURISDICTION HAS BEEN RAISED. IF THE JURISDICTIO N OF THE ASSESSING OFFICER IS CORRECT AS PER THE ASSESSEE, IT CANNOT B E CHALLENGED BEFORE THE TRIBUNAL MERELY BECAUSE A WRONG REPLY WAS GIVEN UND ER THE RTI ACT. FOR SUCH A WRONG REPLY, NECESSARY REMEDY LIES ELSE WHERE AND NOT UNDER THE ACT. IN VIEW OF FOREGOING DISCUSSION, I REJECT THE ADDITIONAL GROUND RAISED BY ASSESSEE. 4 ITA NO. 1991/PUN/2016 A.Y.2008-09 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED ON 13 TH DAY OF DECEMBER, 2018. SD/- R.S. SYAL /VICE-PRESIDENT ' / PUNE; #$ / DATED : 13 TH DECEMBER, 2018. SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT (APPEAL)-1, NASHIK. 4. THE PR. CIT-1, NASHIK. 5. &'( ) , ) , - * + , , ' / DR, ITAT, SMC BENCH, PUNE. 6. (- ./ / GUARD FILE. // TRUE COPY // $'0 / BY ORDER, 1 ), / PRIVATE SECRETARY ) , ' / ITAT, PUNE. 5 ITA NO. 1991/PUN/2016 A.Y.2008-09 * DATE 1 DRAFT DICTATED ON 13 .12.2018 SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 13 .12.2018 SR. PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR.PS/PS SR. PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR. PS/PS 7 DATE OF UPLOADING OF ORDER SR. PS/PS 8 FILE SENT TO BENCH CLERK SR. PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER