2019 (3) TMI 1553

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.... in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in not considering the ground that the Assessing Officer has no jurisdiction to re-open the assessment under Section 147 of the Income Tax Act, 1961? ii) Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in not considering the fact that the Assessing Officer has no jurisdiction under Section 147 to reopen an assessment to make a protective reassessment?" 2. The relevant portion of the order passed by the Tribunal is quoted below for ready reference:- "3. The brief facts of the case are that, both the assessees are holding 50% equity shares in M/s.Microprints Pvt. Ltd. and M/s.Tallboy Station....

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....ed AR. 5. We have heard the rival submissions and carefully perused the materials on record. We find merit in the contention of the learned AR. Adding the amount of Rs. 53,69,803/- in the hands of each of the assessees would amount to double taxation and that is not permissible. Moreover with respect to the transaction of extending loan by M/s.Chennai Micro Finance Ltd., to M/s.Tallboy Stationeries Pvt. Ltd., the provisions of Section 2(22)(e) of the Act attracts the amount of deemed dividend only to the extent of the loan amount which is further restricted to the extent of reserves and surplus of the Company advancing loan. Therefore, in the relevant cases before us the aggregate additions in the hands of the shareholders who are the a....

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....1-12 wherein Tribunal had remitted the case to the Assessing Officer for fresh consideration by verifying as to whether the amount was finally moved to the Assessees or not. He further submitted that despite the said position, the learned Tribunal, recording the concession or pleading by the learned AR made on behalf of the Assessees converted the protective assessment made by the Assessing Authority into a substantive one and gave partial relief deciding the said addition under section 2(22)(e) of the Act to the extent of 50% in the hands of both the shareholders of both the Companies. 4. The learned Senior Standing Counsel appearing for the Revenue, however, tried to justify the said order and submit that even though no Affidavit of the ....

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....ing the correct and proper finding of facts based on relevant evidence and material. 8. We expressed our pain and anxiety against such observation of the learned Tribunal. In the present case also despite the fact that it was brought to the knowledge of the Assessing Authority by way of written submission on 9.4.2018 that an identical issue came up for consideration before the Tribunal in the Assessees' own case for the Assessment Year 2011-12 wherein Tribunal had remitted the case to the Assessing Officer for fresh consideration for verifying as to whether the amount has finally moved or reached to the individual Assessees or not, the Tribunal has proceeded to record such a concession as having been made on behalf of the Assessees. 9....