Income Tax Appellate Tribunal - Delhi
Acit, New Delhi vs Sh. Mahesh Kumar Gupta, Delhi on 12 January, 2018
ITA No. 5121/Del/2016
Assessment year 2004-05
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 Mahesh 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 against the order of the Ld. Commissioner of Income Tax(A)-23, New Delhi dated 15.07.2016 wherein the Ld. Commissioner of Income Tax(A) has allowed relief to the assessee by deleting addition 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, order u/s 143(3) r/w section 153A of the Act was passed by the Assessing Officer on 9.12.2011 accepting the returned income of Rs. 6,09,677/- . Subsequently, the Ld. Commissioner of Income Tax issued notice 1 ITA No. 5121/Del/2016 Assessment year 2004-05 u/s 263 of the Act and vide order dated 17.02.2014 passed u/s 263 directed the Assessing Officer to examine the tax 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 meantime, the Assessing Officer passed order u/s 143(3) r/w section 263 on 25.06.2014 assessing the total income at Rs. 1,78,25,500/- 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 Act vide order dated 8.6.2016 in ITA No. 1347/Del/2014. The assessee also approached the Ld. First Appellate Authority against the order passed u/s 143(3) r/w 263 of the Act and the assessee's appeal was allowed on the ground that the order u/s 263 had been quashed by the ITAT as aforementioned. Now, the department is in appeal against this order of the Ld. Commissioner of Income Tax(A) and has raised the following grounds of appeal:-
" On the facts and in the circumstances of the case 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 addition of 2 ITA No. 5121/Del/2016 Assessment year 2004-05 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 of hearing of the appeal."
3. Ld. Departmental Representative supported the order of the Assessing Officer but could not negate the fact that the order passed u/s 263 of the Act on which the impugned assessment 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 order u/s 263 of the Act has since been quashed by the ITAT Delhi vide its order dated 8.6.2016 in ITA No. 1347/Del/2014 and, therefore, the assessment u/s 143(3) r/w section 263 of the Act does not subsist and we find no reason to differ with the conclusion 3 ITA No. 5121/Del/2016 Assessment year 2004-05 reached by the ld. Commissioner of Income Tax(A) in this regard. Accordingly, the grounds raised by the department are dismissed.
5. In the result, the appeal of the department stands dismissed.
Order pronounced in the Open Court on 12th January, 2018.
Sd/- Sd/-
(R.S. SYAL) (SUDHANSHU SRIVASTAVA)
VICE PRESIDENT JUDICIAL MEMBER
DT. 12th JANUARY 2018
'GS'
Copy forwarded to:-
1. Appellant
2. Respondent
3. CIT(A)
4. CIT
5. DR
By Order
Asstt. Registrar
4