Tca/31/2011 Of Commissioner Of Income Tax-I v. M/S.accel Ltd

IN THE HIGH COURT OF JUDICATURE AT MADRAS CORAM THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAMandTHE HONOURABLE MR.JUSTICE N.SATHISH KUMAR Commissioner of Income Tax - IChennai.... Appellant / Appellant-vs- M/s.Accel Ltd.,NO.75, Nelson Manickam Road,Chennai - 600 029.... Respondent / Respondent Tax Case (Appeal) filed under Section 260-A of the IncomeTax Act, 1961 against the order of the Income Tax AppellateTribunalBench'C', Chennai, dated30.07.2010, inMA.No.76/Mds/2010 in ITA 1825/Mds/2008 for the assessment year2004-05 against the order of the Income Tax Appellate Tribunal,Chennai Bench C, Chennai dated 11/09/2009 in ITANo.1825/Mds/2008 for the assessment year 2004-2005 against theorder of the Commissioner of Income Tax (Appeals)-III, Chennaidated 28.05.2008 in ITA No.603/06-07 for the assessment year2004-05 against the order of the Assistant Commissioner ofIncome Tax company circle I(1), Chennai dated 6/12/2006 inPAN/GIR No.AX6-061/AAACA3042P for the assessment year 2004-2005. For Appellant :M/s.R.HemalathaSenior Standing Counsel******JUDGMENT (Judgment was delivered by T.S.Sivagnanam, J.) This appeal, filed by the Revenue under Section 260A of theIncome-tax Act, 1961 (hereinafter referred to as "the Act"), isdirected against the order passed by the Income Tax AppellateTribunal Bench 'C', Chennai (hereinafter referred to as "theTribunal") dated 30.07.2010, in MA.No.76/Mds/2010 for theassessment year 2004.05. https://hcservices.ecourts.gov.in/hcservices/ 2.The appeal has been admitted by order dated 06.06.2011,on the following substantial questions of law:- “1.Whether on the facts and in thecircumstances of the case, the Income Tax AppellateTribunal was right in dismissing the MiscellaneousApplication filed by the Revenue in respect of theAppellate Order dismissing the Revenue's appeal,pointing out that the Appellate Tribunal had notconsidered the ground placed by the Revenue inGround No.2.4 to the effect that the Commissionerof Income Tax (Appeals) had failed to consider theremand report submitted by the Assessing Officer? 2.Whether on the facts and in thecircumstances of the case, the Income Tax AppellateTribunal was right in not rectifying the mistake ofnon-consideration of a vital ground of appeal whichamounted to a mistake apparent from record eventhough no fresh facts which were not availablebefore the Tribunal had to be considered? 3.Whether on the facts and in thecircumstances of the case, the Income Tax AppellateTribunal was right in not rectifying its orderconfirming the deletion of the entire addition ofRs.4,16,12,082/- made by the Assessing Officertreating the said amount as deemed dividend underSection 2(22)(e) by not considering the ground ofappeal raised by the Revenue in the appeal?" 3.Heard M/s.R.Hemalatha, learned Senior Standing Counsel forthe appellant revenue. Notice has been served on the respondentassessee and their name is printed in the cause list, but noneappears for the respondent. 3.Whether on the facts and in thecircumstances of the case, the Income Tax AppellateTribunal was right in not rectifying its orderconfirming the deletion of the entire addition ofRs.4,16,12,082/- made by the Assessing Officertreating the said amount as deemed dividend underSection 2(22)(e) by not considering the ground ofappeal raised by the Revenue in the appeal?" 3.Heard M/s.R.Hemalatha, learned Senior Standing Counsel forthe appellant revenue. Notice has been served on the respondentassessee and their name is printed in the cause list, but noneappears for the respondent. 4.The Tribunal by the impugned order dismissed themiscellaneous application filed by the revenue requesting theTribunal to rectify the mistake in the order passed by it dated11.09.2009. The said appeal was filed by the revenuechallenging the order passed by the Commissioner of Income Tax(Appeals)-III (hereinafter referred to as "the CIT(A)"), Chennaidated 28.05.2008. The revenue contended that the CIT(A) erredin deleting the addition made by the Assessing Officer towardsdeemed dividend under Section 2(22)(e) of the Act; that the CIT(A) failed to consider the remand report submitted by theAssessing Officer stating that there are number of transactionsappearing on the credit side of the ledger account with anarration 'advance for supplies' and that there have been nosuch supplies actually made by the assessee to the subsidiarycompany. Apart from the above, the other grounds were alsoraised by the revenue before the CIT(A). After considering therival submissions, the Tribunal by order dated 30.07.2010 dismissed the appeal filed by the revenue and confirmed theorder passed by the CIT(A) and the Tribunal has assigned certainreasons for coming to such an conclusion. 5.The revenue filed miscellaneous application to rectify themistake in the order passed by the Tribunal stating that certaingrounds raised by them were not properly considered. Thegrounds which according to the revenue were not considered iswith regard to the remand report submitted by the AssessingOfficer. The miscellaneous application once again reiteratecertain grounds which we find were the grounds raised before theTribunal. The Tribunal by the impugned order rejected theapplication on the ground that there is no error which needs tobe rectified and the revenue seeks to re-argue the matter. 6.We are in agreement with the view taken by the Tribunal.The attempt of the revenue is to re-canvas the points which wereraised by them before the Tribunal and in the event if the therevenue is of the opinion that the points raised by them werenot properly considered, then the remedy is to file an appeal.On a perusal of the order passed by the Tribunal dated11.09.2009, more particularly, in paragraph 6, we find that thereport filed was noticed by the Tribunal. Thus, we are of theconsidered view that there is no rectifiable mistake pointed outby the revenue before the Tribunal to exercise its jurisdictionunder Sub-section (2) of Section 254 of the Act. Hence, we findthat there is no error in the finding of the Tribunal andaccordingly, the appeal fails and dismissed. Consequently, thesubstantial questions of law were answered against the revenue.No costs. Sd/- Assistant Registrar(CCC) //True Copy// cse Sub Assistant Registrar To 1) The Income Tax Appellate Tribunal Bench 'C', Chennai 2) The Commissioner of Income Tax, Chennai 3) The Commissioner of Income Tax - Appeals(III), Chennai 4) The Assistant Commissioner of Income Tax, Company Circle I(1), Chennai. vba(co)ssm(18/12/2018) T.C.(A) No.31 of 2011 https://hcservices.ecourts.gov.in/hcservices/