2016 (10) TMI 1067

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....on of law for our consideration : "(a) Whether on the facts and in the circumstances of the case and in law, the Income-tax Appellate Tribunal was correct in upholding the order of the Commissioner of Income-tax (Appeals) and holding that the assessee was not liable to deduct tax at source under section 194 from the alleged share application money which was held as deemed dividend under section 2(22)(e) of the Act by the Assessing Officer ?" 3. The respondent-assessee is in construction business. During the assessment year 2006-07, the respondent-assessee had paid share application money to one M/s. Siddhivinayak Realities Pvt. Ltd. The Assessing Officer added the amount of Rs. 10.35 crores as deemed dividend on a substantive ba....

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....deducted tax on the deemed dividend of Rs. 10.35 crores paid to M/s. Siddhivinayak Realities Pvt. Ltd. The respondent-assessee, being aggrieved, filed an appeal to the Commissioner of Income-tax (Appeals). By an order dated December 27, 2011, the appeal of the respondent-assessee was allowed by the Commissioner of Income-tax (Appeals) holding that as in the appellate proceedings in respect of M/s. Siddhivinayak Realities Pvt. Ltd. and Mr. Vikas Oberoi, the addition of income to the extent of Rs. 10.35 crores under section 2(22)(e) of the Act on substantive and protective basis had been deleted, there was no taxable income which had to suffer tax deduction at source. Consequently, no failure to deduct tax could arise. 6. Being aggrieved, ....

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....ure to deduct tax did not subsist, the TDS proceedings must also fail. This was in view of the orders passed in the case of recipients, i.e., M/s. Siddhivinayak Realities Pvt. Ltd. and Mr. Vikas Oberoi in appeal by the authorities under the Act including this court that they were not liable to any tax as they had not received any deemed dividend under section 2(22)(e) of the Act. Once the foundation is removed, the superstructure falls (sublato fundamento cadit opus). The grievance of the Revenue is that in TDS proceedings, one must ignore the orders passed in the hands of the recipients, i.e., M/s. Siddhivinayak Realities Pvt. Ltd. and Mr. Vikas Oberoi. The officers of the Revenue administering the TDS provisions are not outside the scope ....