C.Kathirvel, CHENNAI V. DCIT, CHENNAI

MA 142/CHNY/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5759 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-09-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 18-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: ASISH TRIPATHY
• Keywords: Deemed dividend; Tax effect

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI ... , !',$ %& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER '' / M.P. NO.142/MDS/2017 (IN I.T.A. NO.2656/MDS/2016) ( )( / ASSESSMENT YEAR : 2008-09 SHRI C. KATHIRVEL, NO.204/175, FLAT NO.21, CHOOLAIMEDU HIGH ROAD, CHOOLAIMEDU, CHENNAI - 600 094. PAN : AAEPK 9218 J V. THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 6(1), CHENNAI - 600 034. (+,( /PETITIONER) (+-,./ RESPONDENT) +,( 0 1 /PETITIONER BY : SHRI ASISH TRIPATHY, JCIT +-,. 0 1 / RESPONDENT BY : SH. SAROJ KUMAR PARIDA, ADVOCATE 2 0 3$ / DATE OF HEARING : 14.07.2017 4!) 0 3$ / DATE OF PRONOUNCEMENT : 14.09.2017 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS PETITION ON THE GROUND THAT THE TAX EFFECT INVOLVED IN THE A PPEAL IS LESS THAN ` 10 LAKHS. 2. SH. SAROJ KUMAR PARIDA, THE LD.COUNSEL FOR THE A SSESSEE, SUBMITTED THAT THE TAX EFFECT INVOLVED IN THIS APPE AL IS LESS THAN ` 10 2 M.P. NO.142/MDS/17 LAKHS. THEREFORE, ACCORDING TO THE LD. COUNSEL, TH E APPEAL IS NOT MAINTAINABLE BEFORE THIS TRIBUNAL, HENCE, THIS TRIB UNAL OUGHT NOT TO HAVE GONE INTO MERIT OF THE APPEAL. MOREOVER, ACCO RDING TO THE LD. COUNSEL, THERE WAS A BUSINESS TRANSACTION BETWEEN T HE ASSESSEE AND M/S VISHNU VELU BUILDERS. WHEN THERE WAS A BUS INESS TRANSACTION, THE ADVANCE OR LOAN RECEIVED BY THE AS SESSEE CANNOT BE TREATED AS DEEMED DIVIDEND. IN VIEW OF THE ABOV E, ACCORDING TO THE LD. COUNSEL, THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNAL, HENCE, THE ORDER OF THIS TRIBUNAL DATED 29 TH DECEMBER, 2016 MAY BE RECALLED AND THE APPEAL BE RESTORED ON THE FILE OF THE TRIBUNAL FOR RE- HEARING. 3. ON THE CONTRARY, SHRI ASISH TRIPATHY, THE LD. DE PARTMENTAL REPRESENTATIVE, SUBMITTED THAT DURING THE HEARING O F THE APPEAL, IT WAS NOT BROUGHT TO THE NOTICE OF THE BENCH THAT THE TAX EFFECT INVOLVED IN THIS APPEAL IS LESS THAN ` 10 LAKHS. THIS TRIBUNAL EXAMINED THE MATTER AND FOUND THAT THERE WAS A DEEM ED DIVIDEND, THEREFORE, BY PLACING RELIANCE ON THE JUDGMENT OF A PEX COURT IN KANTHILAL MANILAL V. CIT (41 ITR 275), FOUND THAT T HE ASSESSING OFFICER HAS RIGHTLY BROUGHT TO TAX THE DEEMED DIVID END, ACCORDINGLY, THE REVENUES APPEAL WAS ALLOWED. ACCORDING TO THE LD. D.R., NOW, AT THIS STAGE, THE ASSESSEE CANNOT SAY THAT THE TAX INVOLVED IS LESS 3 M.P. NO.142/MDS/17 THAN ` 10 LAKHS. THE CIRCULAR ISSUED BY THE CBDT IS NOT B INDING ON THIS TRIBUNAL. WHATEVER MAY THE REASON, WHEN THE T RIBUNAL IN EXERCISE OF ITS DISCRETION, DISPOSED THE APPEAL ON MERIT, THE ASSESSEE CANNOT NOW COME AND SAY THAT THE TAX EFFEC T INVOLVED IN THIS APPEAL IS LESS THAN ` 10 LAKHS. THEREFORE, ACCORDING TO THE LD. D.R., THE MISCELLANEOUS PETITION FILED BY THE ASSES SEE IS NOT MAINTAINABLE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS RIGHTLY SUBMITTED BY THE LD. DEPARTMENTAL REPRESENTATIVE, I T WAS NOT BROUGHT TO THE NOTICE OF THE EARLIER BENCH WHICH HE ARD THE APPEAL, THAT THE TAX EFFECT INVOLVED IN THE APPEAL IS LESS THAN ` 10 LAKHS. WHEN THE APPEAL WAS DISPOSED OF ON MERIT BY THIS TR IBUNAL, THIS TRIBUNAL CANNOT REVIEW ITS ORDER. WHAT IS PERMISSI BLE UNDER SECTION 254(2) OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE A CT') IS ONLY TO RECTIFY A PRIMA FACIE ERROR ON THE FACE OF THE RECORD. IN THIS CASE, IT IS NOT A CASE OF PRIMA FACIE ERROR. THEREFORE, THIS TRIBUNAL DO NOT FIND ANY PRIMA FACIE ERROR ON THE ORDER OF THIS TRIBUNAL. HENCE, THE MISCELLANEOUS PETITION HAS NO MERIT. ACCORDINGLY, THE SAME IS DISMISSED. 4 M.P. NO.142/MDS/17 5. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED COURT ON 14 TH SEPTEMBER, 2017 AT CHENNAI. SD/- SD/- ( !' ) ( ... ) (SANJAY ARORA) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 6 /DATED, THE 14 TH SEPTEMBER, 2017. KRI. 0 +37' 8')3 /COPY TO: 1. +,( / PETITIONER 2. +-,. /RESPONDENT 3. 2 93 () /CIT(A) 4. 2 93 /CIT 5. ': +3 /DR 6. ;( < /GF.