2018 (5) TMI 1260

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....381/-. This return was revised on 24.03.2014 and after setting off of, brought forward loss, Nil income was declared. The assessing officer passed an order u/s 143(3) of the Act, assessing income at Rs. 97,33,140/- under normal provisions and at Rs. 2,92,21,474/- under MAT provision of the Act. 3. The Ld. Pr. CIT issued a notice u/s 263 of the Act on 28.10.2016, wherein he observed that the assessee officer had computed book profits for MAT purpose at Rs. 2,92,21,474/-, which was considerably less than the returned book profit of Rs. 5,37,02,730/- which resulted is under assessment of book profits to the extent of Rs. 2,88,64,607/- and consequently excess refund of Rs. 68,89,246/-. After hearing the submissions of the assessee the ld. Pr. ....

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....passing the order u/s 263 of the Act. 5. The ld. counsel for the assessee, Mr. B.K. Chatorvedi, submitted that when the assessing officer passed the assessment order, the judgment of the hon'ble Calcutta High Court in the case of CIT vs. Jayshree Tea & Industries Ltd. reported in 253 ITR 608 was binding on him and the Hon'ble Supreme Court had dismissed the SLP filed by the Union of India against this judgment vide Special Leave to Appeal (Civil) CC 9853/2008 judgment dated 01.08.2008. He relied on the decision of the Hon'ble Calcutta High Court in the case of M/s Russells Properties Pvt. Ltd. vs. ACIT reported in 109 ITR 229 (Cal) wherein it is held that, when the assessing officer had merely followed the decision of the Appellate Tri....

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....the Hon'ble Supreme Court, but the same was dismissed on ground of delay and hence it cannot be said that this is a precedent. He further pointed out that on the very same date i.e. 28.07.2006, an appeal has been filed in the case of Tata Tea Company Ltd. and Another, M/s George Willingson and other cases and the same were admitted by the Hon'ble Supreme Court and hence the law laid down in the judgment in the case of Jayshree Tea & Industries Ltd. was in challenge before the Hon'ble Supreme Court. Hence he submitted that none of the decision relied upon by the ld. counsel for the assessee applying to the facts of the case. He further submitted that the assessing officer has not applied his mind to the issue of dividend distribu....

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....n'ble Supreme Court on the very same date i.e. 28.07.2006. 11. Thus the decision relied upon by the ld. Counsel for the assessee, in our view does not apply to the facts of the case. 12. In the case of Russells Properties Pvt. Ltd., it was a case where the assessing officer passed orders based on the decision of the Tribunal. In the case of this assessee there is no discussion or application of mind by the assessing officer, so as to come to a conclusion that he had followed the judgment in the case of Jayshree Tea & Industries Ltd.(supra). Hence this judgment is not come to the rescue of the assessee. 13. In the judgment of M/s G.M. Mittal Stainless Steel Pvt. Ltd. the Hon'ble Supreme Court had held that if the judgment of the H....