Income Tax Officer, Ward-2(2), Guntur V. Yarlagadda Surendrababu, Guntur

MA 36/VIZ/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9809 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-12-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 23-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Assessee Lawyers: A ARUNA
• Keywords: Deemed dividend; Assessment record
• Section: 2(22)(e)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , ACCOUNTANT MEMBER M .A.NO. 36 /VIZ/ 201 8 (ARISING OUT OF I.T.A.NO. 71 /VIZ/201 7 ) ( / ASSESSMENT YEAR: 20 1 2 - 20 1 3 ) INCOME TAX OFFICER WARD - 2(2) , GUNTUR VS. SHRI YARLAGADDA SURENDRA BABU D.NO.4 - 19 - 89, 8 TH LANE VIKAS NAGAR GUNTUR [PAN :AAGPY3634A] ( / APPELLANT) ( / RESPONDENT) / APPELLANT BY : SMT. SUMAN MALIK, DR / RESPONDENT BY : SMT. A.ARUNA, AR / DATE OF HEARING : 07 . 12. 2018 / DATE OF PRONOUNCEMENT : 07 . 12 .2018 / O R D E R PER D.S. SUNDER SINGH, ACCOUNTANT MEMBER: THIS MISCELLANEOUS APPLICATION IS FILED BY THE REVENUE AGAINST THE ORDER OF THE ITAT VIDE I.T.A. NO.71/VIZ/2017 DATED 09.03.2018 FOR THE ASSESSMENT YEAR (A.Y.) 2012 - 13. 2 M .A. NO . 36 /VIZ/201 8 YARLAGADDA SURENDRA BABU, GUNTUR 2. IN THIS CASE, THE REVENUE FILED APPEAL AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX [CIT(A)] IN RESPECT OF THE DEEMED DIVIDEND U/S 2(22)(E ) OF THE ACT. THE ASSESSEE IS DIRECTOR OF M/S YARLAGADDA EXPORTS (P) LTD. AND RECEIVED A SUM OF RS.45,16,977/ - FROM THE COMPANY AS AN ADVANCE. THE ASSESSING OFFICER (AO) ASSESSED THE SAME AS DEEMED DIVIDEND U/S 2(22)(E) OF THE INCOME TAX ACT, 1961(HEREINAFTER CALLED AS A CT). AGAINST THE ORDER OF THE AO, THE ASSESSEE WENT ON APPEAL BEFORE THE CIT(A) AND THE LD.CIT(A) DELETED THE ADDITION MADE BY THE AO. ON APPEAL BEFORE THE TRIBUNAL, THE TRIBUNAL CONSIDERED THE ENTIRE FACTS AND HELD THAT THERE IS NO CASE FOR ASSESSMENT OF THE SAME AS DEEMED DIVIDEND U/S 2(22)(E) OF THE ACT. THE FACTS AND CIRCUMSTANCES OF THE CASE WERE DISCUSSED IN DETAIL IN THE ORDER. THE TRIBUNAL RELIED ON THE DECISION OF THIS TRIBUNAL IN THE CASE OF DCIT, CENTRAL CIRCLE - 1, VISAKHAPATNAM VS. SRI HARIPR ASAD BHARARIA IN ITA NOS. 435 TO 441/VIZ/2014 DATED 09.09.2016 AND DURING THE APPEAL HEARING, THE DEPARTMENT DID NOT BRING ANY OTHER DECISION OF THE HIGHER COURT TO CONTROVERT THE DECISIONS RELIED UPON BY THIS TRIBUNAL. THEREFORE, PLACING RELIANCE ON ITS OWN DECISION, THE TRIBUNAL HELD THAT THERE IS NO CASE FOR ASSESSMENT OF DEEMED DIVIDEND AND ACCORDINGLY DISMISSED THE APPEAL OF THE REVENUE. 3 M .A. NO . 36 /VIZ/201 8 YARLAGADDA SURENDRA BABU, GUNTUR 3. AGAINST THE ORDER OF THIS TRIBUNAL, THE REVENUE HAS FILED MISCELLANEOUS APPLICATION STATING THAT THE TRIBUNAL HA S NOT CONSIDERED THE FOLLOWING DECISIONS OF HONBLE SUPREME COURT: (A) TARULATA SHYAM & OTHERS VS. CIT(SC) [108 ITR 345] (B) CIT VS. MUKUNDRAJ K.SHAH (SC) [290 ITR 433] 4. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE ASSESSMENT RECORDS. THE TRIBUNAL HAS CONSIDERED THE FACTS ON MERITS AND FOLLOWED ITS OWN DECISIONS WHILE GIVING THE RULING IN THIS CASE. THE DECISION RELIED UPON BY THE AO WERE NEITHER ARGUED NOR DISCUSS ED DURING THE APPEAL HEARING. SINCE THE ITAT HAS TAKEN A DECISION FOLLOWING ITS OWN DECISION ON THE FACTS AND CIRCUMSTANCES OF THE CASE, REQUESTING FOR RECONSIDERATION OF THE SAME ISSUE ON THE BASIS OF ANOTHER DECISION WOULD TANTAMOUNT TO REVIEW OF THE O RDER OF THE TRIBUNAL WHICH IS NOT PERMISSIBLE AS PER THE PROVISIONS OF THE ACT. THIS VIEW IS SUPPORTED BY THE DECISION OF HONBLE H IGH COURT O F JAMMU AND KASHMIR IN AJAY KAPOOR. V. COMMISSIONER OF INCOME - TAX 93 TAXMANN.COM 433. SIMILARLY THE COORDINATE BEN CH OF ITAT, BANGALORE IN GOWTHAMI ASSOCIATES. V. INCOME TAX OFFICER, WARD 2 (2) (2), BANGALORE, [2018] 89 TAXMANN.COM 192 (BANGALORE - TRIB.) HELD AS UNDER: 7. SECTION 254 OF THE ACT READS AS FOLLOWS : ' (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN [SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED], WITH A VIEW TO RECTIFYING ANY 4 M .A. NO . 36 /VIZ/201 8 YARLAGADDA SURENDRA BABU, GUNTUR MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB - SECTION (1), AND SHALL MAKE S UCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESSING OFFICER.' THE HON'BLE KARNATAKA HIGH COURT IN CIT V. MC. DOWELL & CO. LTD. [2009] 3 10 ITR 215/177 TAXMAN 317 AFTER CONSIDERING THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD. V. CIT [2007] 295 ITR 466/165 TAXMAN 3 07 (SC) HAS HELD THAT THE POWER UNDER SECTION 254(2) OF THE ACT CANNOT BE EXERCISED SO AS TO REVIEW ORDER PASSED BY THE TRIBUNAL. THE HON'BLE COURT HELD THAT APPLICATION OF PRINCIPLES LAID DOWN BY THE SUPERIOR COURTS TO THE FACTS OF THE CASE ON ERRONEOUS U NDERSTANDING OF SUCH PRINCIPLES, RECORDING OF AN ERRONEOUS FINDING BY THE TRIBUNAL BASED ON FACTS ON RECORD, FORMATION OF A CONCLUSION ON ERRONEOUS APPLICATION OF PROVISIONS OF LAW TO THE FACTS OF THE CASE, ETC CANNOT BE HELD TO BE A 'MISTAKE APPARENT FROM THE RECORD' WARRANTING RECTIFICATION BY THE TRIBUNAL IN EXERCISE OF ITS POWER UNDER SECTION 254(2). BY RECONSIDERING THE APPLICATION OF PRINCIPLES LAID DOWN BY SUPERIOR COURTS TO THE FACTS OF THE CASE OR BY RECONSIDERING ITS FINDINGS RECORDED, OR BY RECON SIDERING THE APPLICATION OF THE RELEVANT PROVISIONS OF LAW TO THE FACTS OF THE CASE, IN A MISCELLANEOUS PETITION UNDER SECTION 254(2), THE TRIBUNAL WOULD BE EXERCISING POWER OF REVIEW OF ITS EARLIER ORDER ON MERITS BUT NOT 'RECTIFICATION OF MISTAKE APPAREN T FROM THE RECORD' AND SUCH REVIEW WOULD CERTAINLY BE BEYOND THE SCOPE OF SECTION 254(2). 8. IN VIEW OF THE AFORESAID DECISION OF THE HON'BLE KARNATAKA HIGH COURT WHICH IS THE JURISDICTIONAL HIGH COURT AND WHICH IS BINDING ON US, WE ARE OF THE VIEW THAT THROUGH THIS MISCELLANEOUS PETITION THE ASSESSEE IS SEEKING A REVIEW OF THE EARLIER ORDER OF THE TRIBUNAL BY RECONSIDERING THE APPLICATION OF PRINCIPLES LAID DOWN BY SUPERIOR COURTS TO THE FACTS OF THE CASE OR BY RECONSIDERING ITS FINDINGS RECORDED, OR BY RECONSIDERING THE APPLICATION OF THE RELEVANT PROVISIONS OF LAW TO THE FACTS OF THE CASE. SUCH A COURSE IS NOT PERMISSIBLE UNDER SECTION 254(2) OF THE ACT, AS HELD BY THE HON'BLE KARNATAKA HIGH COURT. IN THIS FACTUAL AND LEGAL MATRIX OF THE CASE, WE DISMIS S THIS M P FILED BY THE ASSESSEE IN THE CASE ON HAND. WE CAREFULLY CONSIDERED THE MISCELLANEOUS APPLICATION, THE ARGUMENTS OF THE LD.DR AND THE ORDER PASSED BY THIS TRIBUNAL AND FOUND NO MISTAKE IN THE ORDER WHICH REQUIRE MODIFICATION U/S 254(2) OF THE ACT. ACCORDINGLY, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. 5 M .A. NO . 36 /VIZ/201 8 YARLAGADDA SURENDRA BABU, GUNTUR 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH DECEMBER, 2018. S D/ - S D/ - ( . ) ( . . ) (V. DURGA RAO) ( D.S. SUNDER SINGH ) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /VISAKHAPATNAM /DATED : 07 . 1 2 .2018 L.RAMA, SPS / COPY OF THE ORDER FORWARDED TO: - 1. / THE APPELLANT THE INCOME TAX OFFICER - WARD - 2(2), GUNTUR 2 . / THE RESPONDENT SHRI YARLAGADDA SURENDRA BABU, D.NO.4 - 19 - 89, 8 TH LANE, VIKAS NAGAR, GUNTUR 3. THE COMMISSIONER OF INCOME TAX, GUNTUR 4 .THE COMMISSIONER OF INCOME TAX (APPEALS) - 1 , GUNTUR 5 . , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM