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| The Tax Publishers2020 TaxPub(DT) 3518 (Bang-Trib) INCOME TAX ACT, 1961
Section 254
Where Tribunal had not examined applicability of binding decision of High Court rendered in the case of Sarva Equity Pvt. Ltd [(2014) 225 Taxman 172 (Karn) : 2014 TaxPub(DT) 3721 (Karn-HC)] and also did not consider decision rendered by Supreme Court in case of Madhur Housing and Development Co. [(2018) 401 ITR 152 (SC) : 2017 TaxPub(DT) 4516 (SC)], therefore, non-consideration of both the above decisions would result in a mistake apparent from record and Tribunal had misquoted the shareholding pattern of the assessee-company, accordingly, appeal was allowed.
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Appeal (Tribunal) - Rectification of mistakes - Deemed dividend under section 2(22)(e) - Tribunal misquoted the shareholding pattern
Assessee had filed this Miscellaneous Petition submitting that there were mistakes apparent from record in order passed by Tribunal. Assessee submitted that the issue that was considered by Tribunal related to taxability of deemed dividend under section 2(22)(e). Assessee company had taken a loan from another company. Assessee was not a shareholder in the company which lent loan to the assessee. However, the above said loan was assessed in the hands of the assessee as “deemed dividend” under section 2(22)(e). Shareholders of the assessee company were holding 98% of the shares and Miss. 'A' holding 2% of the shares. However, in the order, Tribunal has observed that 2% of the shares in assessee company were held by said company i.e., company which had lent money to the assessee. This observation of the Tribunal was factually incorrect and same required rectification. Held: Tribunal had not examined applicability of the binding decision of High Court rendered in the case of Sarva Equity Pvt. Ltd. [(2014) 225 Taxman 172 (Karn) : 2014 TaxPub(DT) 3721 (Karn-HC)] and also did not consider decision rendered by Supreme Court in the case of Madhur Housing and Development Co. [(2018) 401 ITR 152 (SC) : 2017 TaxPub(DT) 4516 (SC)]. Hence non-consideration of both the above decisions would result in a mistake apparent from record. Assessee also pointed out that the Tribunal had misquoted the share-holding pattern of the assessee company by observing that 2% of shares were held by the said company which was also a mistake apparent from record. There was merit in the petition filed by assessee and appeal was allowed.
CIT v. Madhur Housing & Development Company (2018) 401 ITR 152 (SC) : 2017 TaxPub(DT) 4516 (SC), Gopal and Sons (HUF) v. CIT (2017) 77 Taxman.com 71 (SC) : 2017 TaxPub(DT) 68 (SC), Asstt. CIT v. Saurashtra Kutch Stock Exchange Ltd (2008) 305 ITR 227 (SC) : 2008 TaxPub(DT) 2300 (SC), CIT v. Karnataka Turned Components Pvt. Ltd. (2015) 229 Taxman 465 (Kar) : 2015 TaxPub(DT) 1082 (Karn-HC) and Asstt. CIT v. Sarva Equity (P.) Ltd. (2014) 225 Taxman 172 (Karn) : 2014 TaxPub(DT) 3721 (Karn-HC).
REFERRED :
FAVOUR : In assessee's favour.
A.Y. : 2012-13
IN THE ITAT, BANGALORE BENCH
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