The Case Of Cit v. Date Of Order 24-09-2018 W.p

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24 DAY OF SEPTEMBER, 2018 | BEFORKH, THE HON’BLE Dr.JUSTICE VINEET KOTHARI W.P.No.40052/2018 (T-IT) BETWEEN SMT. RINKU CHAKRABORTHYW/O SRI DEBASISH CHAKRAVARTYAGED ABOUT 58 YBARS|R/AT. NOW AT No.1702, AMBROSIA BUILDINGHIRANANDANI GARDEN POWALMUMBAI-100076, MAHARASHTRA. _ PRTITTIONER (By Mrs. VANI H, ADV..,) AND THER DEPUTY COMMISSIONER OF INCOME TAXCENTRAL CIRCLE 1(1)CHENTRAL REVBENUB BUILDINQUEENS ROAD, BANGALORE-so60001. . RESPONDENT THIS WRIT PETITION [IS FILED UNDER ARTICLES 226 &ID OK THERE CONSTITULION OF INDIA PRAYING TO SEI ASIDETHERE IMPUGNED ORDER DATED 31-08-2018 PASSED IN MNo.296/2018ARISINGOUTOF.ITA|NO.1474/BANG/2004RELATING OT ASSESSMENT YEAR 1995-96, BY THE APPELLATETRIBUNAL VIDE ANNEXURE-J AND CONDONE THE DELAY &ETC., THIS PETITION COMING ON FOR PRLY. HEARING THIS|DAY, THE COURT MADE THE FOLLOWING: Date of Order 24-09-2018 W.P.No.40052/2018 | Smt. Rinku Chakraborthy Vs.The Deputy Commissioner of Income Tax 2/5. ORDER Mrs. Vani H, Adv. for Petitioner. Thepetitioner/assessee-Smt.RinkuChakraborthyhas filed this writ petition in this Court on|07.09.2018agerieved by the order dated|01.08.2018passed by the|Income Tax Appellate Tribunal(for short ‘Tribunal)‘B’Bench, Bengaluru, dismissingM.P.No.256/ Bang/2018arising out ofITA No.1474/Bang/2004for the|A.Y.1995-96(Smt.Rinku Chakraborthy —vs- The Deputy Commissioner|of Income Tax). The Miscellaneous petition filed by theAssessee was rejected as barred by limitation. iaThe Tribunal had dismissed the main Appealfiled by the Assessee vide earlier order dated13.09.2017and a copy of which is placed on record asAnnexure-FThe Tribunal had upheld the order of the learned|Commissioner of Income Tax (Appeals)upholding the)applicability ofExplanation-2TOSection 2(22)ot theIncome Tax Act, 1961(for short ‘Act’) holding that theloans and advances made to the Directors of the Company Date of Order 24-09-2018 W.P.No.40052/2018 |Smt. Rinku Chakraborthy Vs.The Deputy Commissioner of Income Tax 3/5. were taxable as ‘Deemed Dividend’ under the said provisionsof the Act. The relevant extract of the Tribunal’s originalappeal Order dated13.09.2017is quoted below for readyreference: “4 Whe have considered the rival submissions. I[n ourconsidered opinion, in view of the provisions of the)Explanation — 2 to section 2 (22) and also in view ofthis fact that the loan was admittedly paid on |28-03-1995, the profit of the current year up to |98-03-1995 has to be considered as accumulated|profit. Since the accumulated profit as on 31-03-1994Was|Rs.632,415/-|and|OT.31-03-1995Rs.58,51,672/-,the|accumulatedprofit|upto28-03-1995 cannot be less than 30.30 Lacs beingRs.6.60 lacs multiplied by 5 tf it is considered that theprofit of the current year is arising evenly through out)the year because there is no material brought on|recordby|theasSsSeCSSthattheprofitafter |28-03-1995 was excessive as compared to priorperiod of the current year. In this view of the matter, |there appears to be no infirmity in the order of CIT (A). to after | 3. Now, we examine the applicability of thetribunal order cited by the learned AR of the assessee|since the judgment of Hon'ble apex Court cited by himis no applicable because of change in law. We find|that the tribunal in Para 31 of this order has followed|the same Judgment of Hon’ble apex Court rendered in| Date of Order 24-09-2018 W.P.No.40052/2018 | Smt. Rinku Chakraborthy Vs.The Deputy Commissioner of Income Tax 4/5. the case of CIT vs. Damodaran (Supra) which ts as per|1922 Act and we have already seen that because ofchange in law in the 1961 Act, this Judgment ofHon’ble apex Court is not applicable and for the same|reason, this tribunal order is also not applicable|because this tribunal order is by following the samejudgment ofHon'ble apex Court.” | to after | 3. Now, we examine the applicability of thetribunal order cited by the learned AR of the assessee|since the judgment of Hon'ble apex Court cited by himis no applicable because of change in law. We find|that the tribunal in Para 31 of this order has followed|the same Judgment of Hon’ble apex Court rendered in| Date of Order 24-09-2018 W.P.No.40052/2018 | Smt. Rinku Chakraborthy Vs.The Deputy Commissioner of Income Tax 4/5. the case of CIT vs. Damodaran (Supra) which ts as per|1922 Act and we have already seen that because ofchange in law in the 1961 Act, this Judgment ofHon’ble apex Court is not applicable and for the same|reason, this tribunal order is also not applicable|because this tribunal order is by following the samejudgment ofHon'ble apex Court.” | 3.The assessee, however, did not chose to file anyappeal before the High Court prescribed under the|provisions of|Section Z60A.ot the.Actraising the|substantial questions of law, if any, arising from the order ofthe said Tribunal. The Assessee, however, chose to file|belatedly only a Miscellaneous Petition purportedly seeking|certain corrections in the order passed by the Tribunal|dismissing the main appeal filed by the Assessee. The|Miscellaneous Petition was barred by limitation and_accordingly rejected. The assessee, therefore, has preferred|this writ petition in this Court. 4Having heard the learned counsel for the|petitioner-assessee, this Court is satisfied that the writ|jurisdiction against the order passed by the learned Tribunal Date of Order 24-09-2018 W.P.No.40052/2018 |Smt. Rinku Chakraborthy Vs.The Deputy Commissioner of Income Tax 5/5) dismissing the Miscellaneous Petition as time barred is notavailable to the petitioner as it is a discretionary order. Thepetitioner-assessee ought to have and could have very well|preferred an appeal under|Section 2Z60ot the|Actbeforethe High Court, if at all she was dissatisfied with the order ofthe Tribunal dismissing her appeal and if any substantial|question of law arose in the matter. 5Therefore, the present writ petition filed by thepetitioner /assessee 1s misconceived and the same is Hable tobe dismissed and it is accordinglydismissed. |No costs. 6.However, the petitioner/assessee is at liberty to file an appeal underSection 260Aot theActin accordancewith law. Copy of this order be sent to the Respondent forthwith. Sd/-)JUDGE