2018 (5) TMI 1260 - AT - Income Tax

Tribunal upholds revision under sec 263 Income Tax Act for failure to address dividend distribution tax

Joonktollee Tea And Industries Ltd. Versus DCIT, Circle-4 (1), Kolkata

The Tribunal upheld the revision of the assessment order under section 263 of the Income Tax Act, 1961, finding the assessing officer's failure to ... Revision u/s 263 - non discussion on computation of dividend distribution tax by AO - Held that:- The assessing officer has not discussed this issue of computation of dividend distribution tax in his assessment order. The assessee could not demonstrate that this was an issue enquired into by the AO. Hence there is no application of mind by the assessing officer on this issue during the course of assessment or in the assessment order. Hence the argument of the assessee, that the assessing officer has applied the proposition of law laid down by the Hon’ble High Court in the case of Jayshree Tea & Industries Ltd. to the [ 2001 (9) TMI 74 - CALCUTTA High Court] facts of this case is factually incorrect. Nonapplication of mind by the AO to an issue makes the order of assessment erroneous. This error is prejudicial to revenue. - Decided against assessee. Issues:1. Revision of assessment order under section 263 of the Income Tax Act, 1961.2. Computation of dividend distribution tax and its impact on the assessment.3. Application of legal precedents in revising the assessment order.Issue 1: Revision of assessment order under section 263 of the Income Tax Act, 1961:The appeal was filed against the order of the Principal Commissioner of Income Tax-2, Kolkata under section 263 of the Income Tax Act, 1961. The Principal Commissioner observed an under-assessment of book profits and directed the assessing officer to re-examine the issue. The assessee did not challenge this part of the order. The appellant only contested the direction related to Dividend Distribution Tax. The appellant argued that the assessing officer followed the decision of the Calcutta High Court, making the revision under section 263 illegal. However, the Commissioner argued that the assessing officer did not apply his mind to the issue of dividend distribution tax, rendering the assessment order erroneous and prejudicial to revenue.Issue 2: Computation of dividend distribution tax and its impact on the assessment:The appellant contended that the assessing officer's order was based on the judgment of the Calcutta High Court regarding Dividend Distribution Tax. However, it was found that the assessing officer did not address this issue in the assessment order, indicating a lack of application of mind. The Commissioner argued that the judgment in question was challenged before the Supreme Court, and hence, the assessing officer's reliance on it was not valid. The Tribunal concluded that the assessing officer's failure to consider the issue of dividend distribution tax made the assessment order erroneous and prejudicial to revenue.Issue 3: Application of legal precedents in revising the assessment order:The appellant relied on legal precedents to argue against the revision under section 263, citing cases where orders based on High Court decisions were not revised. However, the Tribunal noted that in the present case, the judgment in question was under challenge before the Supreme Court. The Tribunal held that the legal precedents cited by the appellant did not apply as the assessing officer did not demonstrate application of the High Court judgment in the assessment. Additionally, the Tribunal highlighted that the issue was covered in favor of the revenue by a Supreme Court decision in another case. Consequently, the Tribunal dismissed the appeal of the assessee based on the above analysis.This detailed analysis of the judgment provides insights into the issues raised, arguments presented, and the Tribunal's decision based on the application of relevant legal provisions and precedents.