Smita Vishweshwar, CHENNAI V. ITO, CHENNAI

MA 172/CHNY/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 5661 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-01-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 05-06-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A R V SRINIVASAN
• Assessee Lawyers: M V SWAROOP
• Keywords: Rectification of order; Deemed dividend

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , B BENCH, CHENNAI ... , . , $% BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER MISCELLANEOUS PETITION NO.172/MDS/2017 IN I.T.A.NO. 1236/MDS/2017 ( / ASSESSMENT YEAR : 2010-11) SMT. SMITA VISHWESHWAR, 356, TTK ROAD, ALWARPET, CHENNAI 600 018. VS THE INCOME TAX OFFICER, NON COMPANY WARD 3(3), CHENNAI PAN: AADPV2354F (PETITIONER) ( / RESPONDENT) APPLICANT BY : SHRI M.V. SWAROOP, ADVOCATE /RESPONDENT BY : SHRI AR.V. SRINIVASAN, JCIT /DATE OF HEARING : 12.01.2018 /DATE OF PRONOUNCEMENT : 12.01.2018 / O R D E R PER A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER: THE MISCELLANEOUS PETITION IS FILED BY THE ASSESSEE PRAYING FOR RECTIFICATION OF MISTAKE APPARENT ON RECORD BY RECALLING THE ORDER OF THE TRIBUNAL PASSED IN I.T.A. NO. 1236/MDS/2016 DATED 08.03.2017 FOR THE ASSESSMENT YEAR 2010-11. 2. AT THE OUTSET THE LD.AR SUBMITTED THAT THE TRIBU NAL IN ITS ORDER DATED 08.03.2017 HAD RULED THAT THE AMOUNT RE CEIVED BY THE ASSESSEE IS TO BE TREATED AS DIVIDEND INCOME RECEIV ED FROM THE 2 MP NO.172/MDS/2017 COMPANY. HE FURTHER SUBMITTED THAT, THE BENCH SHOUL D HAVE ALSO CONSEQUENTLY HELD THAT THE RELEVANT COMPANY IS LIAB LE TO PAY DIVIDEND TAX AS PER THE PROVISIONS OF SECTION 115O OF THE ACT AND NOT THE ASSESSEE WHO IS AN INDIVIDUAL HOLDING EQUIT Y SHARE IN THE COMPANY. THE LD.DR ARGUED BY STATING THAT NO INTERF ERENCE IS REQUIRED IN THE ORDER OF THE TRIBUNAL AS WELL AS TH E REVENUE AUTHORITIES BECAUSE THE ISSUE HAS NOT ARISEN YET. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y PERUSED THE MATERIALS ON RECORD AND ORDER OF THE TRIBUNAL D ATED 08.03.2017. AT THE OUTSET WE MUST SAY THAT THE RELE VANT COMPANY HAD NOT PAID DIVIDEND TO THE ASSESSEE BY WAY OF DIS TRIBUTION OF PROFIT EARNED BY IT ATTRACTING THE PROVISIONS OF SE CTION 115O OF THE ACT. IN FACT, THE RELEVANT COMPANY HAD CIRCUMVENTED FROM DOING SO BY WAY OF OTHER MODE WHICH RESULTED IN INCOME TO TH E ASSESSEE. THEREFORE THE TRIBUNAL HAD CONSCIOUSLY HELD IN ITS ORDER THAT THE INCOME RECEIVED BY THE ASSESSEE SHOULD BE TREATED AS DIVIDEND INCOME RECEIVED FROM THE COMPANY THOUGH TECHNICALLY IT IS NOT DIVIDEND DISTRIBUTED BY THE RELEVANT COMPANY OUT OF ITS SURPLUS/PROFITS. HENCE THE TRIBUNAL HAD RESTRAINED FROM MAKING SUCH DIRECTIONS AS PRAYED BY THE LD.AR IN ITS ORDER DATED 08.03.2017. MOREOVER IT IS PERTINENT TO MENTION THA T THERE IS NO 3 MP NO.172/MDS/2017 PROVISION IN THE ACT TO LEVY DIVIDEND TAX ON DEEMED DIVIDEND, HOWEVER AS PER THE PROVISIONS OF SECTION 56(1) OF T HE ACT INCOME OF EVERY KIND WHICH IS NOT EXCLUDED BY SPECIFIC PRO VISIONS OF THE ACT IS TAXABLE. HENCE WE DO NOT FIND ANY MISTAKE THAT I S APPARENT ON RECORD IN THE ORDER PASSED BY THE TRIBUNAL DATED 08 .03.2017. 4. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH JANUARY, 2018 AT CHENNAI. SD/- SD/- ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER ( . ) (A. MOHAN ALANKAMONY) /ACCOUNTANT MEMBER /CHENNAI, !'# /DATED 12 TH JANUARY, 2018 RSR . ' &'() *+( /COPY TO: 1. APPLICANT 2. RESPONDENT 3. , ( *)' )/CIT(A) 4. , /CIT 5. ( -. / /DR 6. .0 ' /GF.