ACIT, Bhubaneswar V. M/s Falcon Real Estates Pvt Ltd, Bhubaneswar

ITA 406/CTK/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4402 (ITAT-CUTTACK)
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2011
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 12-05-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 12-11-2010
• Court: TRIBUNAL
• Department Lawyers: PARAMITA TRIATHY
• Assessee Lawyers: BIBEK MOHANTY
• Keywords: Deemed dividend

Judgement Text

IN THE INCME TAX APPELLATE TRIBUNAL,CUTTACK BENCH, CUTTACK BEFORE : HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER, AND HONBLE SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER. ITA NO. 406/CTK/2010 (ASSESSMENT YEAR 2004 - 05) ASST.COMMISSIONER OF INCOME - TAX, CIRC LE 1(2), BHUBANESWAR. VERSUS M/S.FALCON REAL ESTATES PVT. LTD., A - 22, FALCON HOUSE, CUTTACK ROAD, BBHUBANESWAR. (APPELLANT) (RESPONDENT) FOR THE APPELLANT: S MT. PARAMITA TRIATHY, DR FOR THE RESPONDENT SHRI BIBEK MOHANTY, AR ORDER SHRI K.K.GUPTA, AC COUNTANT MEMBER : THIS APPEAL BY THE REVENUE AGITATES THE ACTION OF THE LEARNED C1T(A)IN DELETING THE ADDITION OF RS.78,00,000 MADE BY THE ASSESSING OFFICER U/S.2(22)(E) OF THE INCOME - TAX ACT, 1961. 2. THE REVENUE AGITATES THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED IN IGNORING THE FACT OF BENEFICIARY SHAREHOLDINGS IN BOTH THE CONCERNS BY ONE OF THE SHARE HOLDER/PARTNER WHICH ATTRACTS THE PROVISIONS OF SECTION 2(22)(E). HE WAS NOT JUSTIFIED IN DELETING THE ADDITION BY STATING THE REASON THAT THE PARTNER IN WHOSE HANDS DEEMED DIVIDEND HAS BEEN ASSESSED SHOULD BE A BENEFICIAL AS WELL AS REGISTERED SHARE HOLDER WHILE NO SUCH CONDITION IS PRESCRIBED U/S.2(22)(E). 3. AT THE OUTSET THE LEARNED COUNSEL FOR THE ASSESSEE RESPONDENT HAS SUBMITTED A COPY OF THE ORDER OF THE TRIBUNAL IN THE CASE OF THE ASSESSEE ITSELF FOR THE IMPUGNED ASSESSMENT YEAR ON ASSESSEES APPEAL WHEN THE TRIBUNAL WAS PLEASED TO QUASH THE ASSESSMENT ORDER MADE UN DER THE PROVISIONS OF SECTION L53A R.W.S.143(3). A COPY OF THE SAID ORDER HAS BEEN F URNISHED WHICH INTERALIA ASSIGNS THE VARIOUS REASONS FOR HOLDING ASSESSMENT SO FRAMED A S NOT VALID. 4. THE LEARNED DR ON THE BASIS OF FACTS AS ENUMERATED BY THE ASSESSING OFFICER AND CONSIDERED BY THE LEARNED CIT(A) DID NOT POINT OUT ANY CONTROVERSY AS TH E ASSESSMENT HAS BEEN ANNULLED THEREAFTER . 5. AFTER HEARING THE RIVAL PARTIES, WE ARE INCLINED TO HOLD THAT THE ISSUES RAISED BY THE REVENUE HA D BEEN PROPERLY DEALT WITH BY THE LEARNED CIT(A) AND ON THE BASIS OF THE ASSESSEE RESPONDENTS CONTENTION RELYIN G ON THE ORDER OF THE TRIBUNAL WHO HAD HELD THE ASSESSMENT ORDER AS INVALID AND ON ANNULMENT THEREOF WE HOLD THAT THE APPEAL IS BOUND TO BE DISMISSED AS UNTENABLE. 6. IN THE RESULT, THE APPEAL FILED BY THE DEPARTMENT IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON DT. 12.05.2011 S D/ - S D/ - (K.S.S.PRASAD RAO) JUDICIAL MEMBER (K.K.GUPTA) ACCOUNTANT MEMBER DATE: 12.05.2011 H.K.PADHEE, SENIOR PRIVATE SECRETARY . COPY OF THE ORDER FORWARDED TO : 1. THE AP PELLANT: 2. THE RESPONDENT: 3. THE CIT, 4. THE CIT(A), 5. THE DR, CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, SENIOR PRIVATE SECRETARY.