R.Lakshminarayanamoorthy, CHENNAI V. DCIT, Coimbatore

ITA 3128/CHNY/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96660 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 29-12-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 31-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A B KOLI
• Assessee Lawyers: T N SEETHARAMAN
• Keywords: Opportunity of being heard; Deemed dividend
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , B B ENCH, CHENNAI . , ' $ , % ' BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ./ I.T.A.NO.3128 & 3129/MDS/2014 ( / ASSESSMENT YEAR: 2010-11) MR.R.LAKSHMINARAYANAMOORTHY 9/66, GANESH NAGAR, G.M.MILLS POST, THUDIYALUR, COIMBATORE-641 029. VS THE DEPUTY/ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE-IV(2), COIMBATORE. PAN: AATPL4105E ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. T.N.SEETHARAMAN, ADVOCATE /RESPONDENT BY : MR. A.B.KOLI, JCIT /DATE OF HEARING : 29 TH DECEMBER, 2015 /DATE OF PRONOUNCEMENT : 31 ST DECEMBER, 2015 / O R D E R PER CHALLA NAGENDRA PRASAD, JM: THESE TWO APPEALS ARE FILED BY THE ASSESSEE AGAINST THE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEA LS)-I, COIMBATORE DATED 03.11.2014 ARISING OUT OF THE ORDE R PASSED UNDER SECTION 143(3) AND PENALTY ORDER PASSED UNDER SECTION 271(1)(C) OF THE ACT. 2. THE ASSESSEE FILED A PETITION RAISING ADDITIONAL GROUNDS CONTENDING THAT PROVISIONS OF SECTION 2(22)(E) OF T HE ACT ARE NOT APPLICABLE TO THE FACTS OF THE ASSESSEES CASE SINCE THE ASSESSEE MANAGING DIRECTOR OF THE COMPANY MORTGAGED ALL HIS PROPERTIES FOR OBTAINING LOAN BY THE COMPANY AN D THE 2 ITA NOS.3128 & 3129/MDS/2014 ASSESSEE OBTAINED LOAN FROM THE COMPANY CANNOT BE T REATED AS TRANSACTION FALLING WITHIN THE MEANING OF DEEMED DIVIDEND UNDER SECTION 2(22)(E) OF THE ACT. 3. COUNSEL FOR THE ASSESSEE SUBMITS THAT THIS GROUN D IS RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL AND N OT RAISED BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). HE PRAYS FOR ADMISSION OF ADDITIONAL GROUND AND DISPOSAL OF THE APPEAL. 4. THE ADDITIONAL GROUND RAISED BY THE ASSESSEE APP EARS TO BE GOING TO THE ROOT OF THE MATTER AS IT IS THE CONTENTION OF THE ASSESSEE THAT PROVISIONS OF SECTION 2(22)(E) H AVE NO APPLICATION AT ALL IN SUCH SITUATION. THUS WE ADMIT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE. SINCE THI S ADDITIONAL GROUND IS NOT RAISED BEFORE THE COMMISSI ONER OF INCOME TAX (APPEALS) IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL S) AND RESTORE THIS ADDITIONAL GROUND TO THE FILE OF THE C OMMISSIONER OF INCOME TAX (APPEALS), WHO SHALL DECIDE THE APPEA L AFRESH IN ACCORDANCE WITH LAW, ON EXAMINING THE EVIDENCES PRODUCED BY THE ASSESSEE, AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THUS, T HE 3 ITA NOS.3128 & 3129/MDS/2014 QUANTUM APPEAL IS RESTORED TO THE COMMISSIONER OF I NCOME TAX (APPEALS). 5. THE OTHER APPEAL WHICH IS FILED AGAINST THE ORDE R PASSED LEVYING PENALTY UNDER SECTION 271(1)(C) OF T HE ACT FOR THE SAME ASSESSMENT YEAR. THIS APPEAL IS ALSO RESTO RED TO THE FILE OF THE COMMISSIONER OF INCOME TAX (APPEALS ) FOR FRESH ADJUDICATION SINCE THE OUTCOME OF APPEAL IN Q UANTUM HAS BEARING ON PENALTY APPEAL. THUS, BOTH THE APPE ALS OF THE ASSESSEE ARE RESTORED TO THE FILE OF THE COMMISSION ER OF INCOME TAX (APPEALS) FOR FRESH CONSIDERATION. 6. BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST DECEMBER, 2015. SD/- SD/- ( # ) ( & (# ) ( CHANDRA POOJARI ) ( CHALLA NAG ENDRA PRASAD ) * / ACCOUNTANT MEMBER ( * / JUDICIAL MEMBER ( /CHENNAI, , /DATED 31 ST DECEMBER, 2015 SOMU ./ 0/ /COPY TO: 1. APPELLANT 2.RESPONDENT 3. 1 () /CIT(A) 4. 1 /CIT 5. / 5 /DR 6. /GF .