ACIT, New Delhi V. Sh. Mahesh Kumar Gupta, Delhi

ITA 5121/DEL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4141 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2004-2005
• Appeal Filed On: 29-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALKA GAUTAM
• Keywords: Deemed dividend
• Section: 143(3); 153A; 263; 2

Judgement Text

ITA NO. 5121/DEL/2016 ASSESSMENT YEAR 2004-05 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO. 5121/DEL/2016 AY: 2004-05 ASSTT. COMMISSIONER OF INCOME TAX, VS SHRI MA HESH KUMAR GUPTA, CENTRAL CIRCLE-04, 47, G.B. ROAD, NEW DELHI. DELHI. (APPELLANT) (RESPONDENT) DEPARTMENT BY : MS ALKA GAUTAM, SR. DR ASSESSEE BY: SHRI NIREN GUPTA, CA DATE OF HEARING: 04.01.2018 DATE OF PRONOUNCEMENT: 12.01.2018 ORDER PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER THIS APPEAL HAS BEEN PREFERRED BY THE DEPARTMENT A GAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX(A)- 23, NEW DELHI DATED 15.07.2016 WHEREIN THE LD. COMMISSIONER OF IN COME TAX(A) HAS ALLOWED RELIEF TO THE ASSESSEE BY DELETING ADDI TION OF RS. 1,72,15,824/- ON ACCOUNT OF DEEMED DIVIDEND U/S 2( 22)(E) OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED 'THE ACT') . 2. BRIEF FACTS OF THE CASE ARE THAT IN THIS CASE, O RDER U/S 143(3) R/W SECTION 153A OF THE ACT WAS PASSED BY THE ASSES SING OFFICER ON 9.12.2011 ACCEPTING THE RETURNED INCOME OF RS. 6 ,09,677/- . SUBSEQUENTLY, THE LD. COMMISSIONER OF INCOME TAX IS SUED NOTICE ITA NO. 5121/DEL/2016 ASSESSMENT YEAR 2004-05 2 U/S 263 OF THE ACT AND VIDE ORDER DATED 17.02.2014 PASSED U/S 263 DIRECTED THE ASSESSING OFFICER TO EXAMINE THE T AX LIABILITY OF RS. 1,72,15,824/- IN THE HANDS OF THE ASSESSEE U/S 2(22)(E) OF THE ACT. THE ASSESSEE FILED AN APPEAL BEFORE THE ITAT FOR QUASHING THE ORDER PASSED U/S 263 OF THE ACT BUT IN THE MEAN TIME, THE ASSESSING OFFICER PASSED ORDER U/S 143(3) R/W SECTI ON 263 ON 25.06.2014 ASSESSING THE TOTAL INCOME AT RS. 1,78,2 5,500/- AFTER MAKING AN ADDITION OF RS. 1,72,15,824/- U/S 2(22)(E ) OF THE ACT. THE ITAT QUASHED THE ORDER PASSED U/S 263 OF THE AC T VIDE ORDER DATED 8.6.2016 IN ITA NO. 1347/DEL/2014. THE ASSES SEE ALSO APPROACHED THE LD. FIRST APPELLATE AUTHORITY AGAINS T THE ORDER PASSED U/S 143(3) R/W 263 OF THE ACT AND THE ASSESS EES APPEAL WAS ALLOWED ON THE GROUND THAT THE ORDER U/S 263 HA D BEEN QUASHED BY THE ITAT AS AFOREMENTIONED. NOW, THE DE PARTMENT IS IN APPEAL AGAINST THIS ORDER OF THE LD. COMMISSIONE R OF INCOME TAX(A) AND HAS RAISED THE FOLLOWING GROUNDS OF APPE AL:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) HAS ERRED IN: 1. THE ORDER OF THE CIT(A) IS NOT CORRECT IN LAW AND FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN DELETING THE ADDIT ION OF ITA NO. 5121/DEL/2016 ASSESSMENT YEAR 2004-05 3 RS.1,72,15,824/- MADE BY THE AO ON ACCOUNT OF DEEMED DIVIDEND U/S 2(22)(E) OF THE INCOME TAX ACT, 1961. 3. THE APPELLANT CRAVES LEAVE TO ADD, AMEND ANY/ALL THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE O F HEARING OF THE APPEAL. 3. LD. DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER OF THE ASSESSING OFFICER BUT COULD NOT NEGATE THE FACT THA T THE ORDER PASSED U/S 263 OF THE ACT ON WHICH THE IMPUGNED ASS ESSMENT WAS BASED HAD BEEN QUASHED BY ITAT DELHI E BENCH IN ITA NO. 1347/DEL/2014 VIDE ORDER DATED 8.6.2016. 3.1 LD. AR PLACED ON RECORD A COPY OF THE ORDER OF THE ITAT E BENCH IN ITA NO. 1347/DEL/2014. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS UNDISPUTED THAT ASSESSMENT WAS MADE U/S 143(3) OF THE ACT CONSEQUENT UPON THE ORDER DATED 17.2.2014 PASSED BY THE LD. COMMISSIONER OF INCOME TAX(A) U/S 263 OF THE ACT. IT IS ALSO UNDISPUTED THAT THIS OR DER U/S 263 OF THE ACT HAS SINCE BEEN QUASHED BY THE ITAT DELHI VI DE ITS ORDER DATED 8.6.2016 IN ITA NO. 1347/DEL/2014 AND, THEREF ORE, THE ASSESSMENT U/S 143(3) R/W SECTION 263 OF THE ACT DO ES NOT SUBSIST AND WE FIND NO REASON TO DIFFER WITH THE CO NCLUSION ITA NO. 5121/DEL/2016 ASSESSMENT YEAR 2004-05 4 REACHED BY THE LD. COMMISSIONER OF INCOME TAX(A) IN THIS REGARD. ACCORDINGLY, THE GROUNDS RAISED BY THE DEPARTMENT A RE DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE DEPARTMENT STAN DS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH JANUARY, 2018. SD/- SD/- (R.S. SYAL) (SUDHANSHU SRIVASTAVA) VICE PRESIDENT JUDIC IAL MEMBER DT. 12 TH JANUARY 2018 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER ASSTT. REGISTRAR