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2019 (5) TMI 193 - HC - Income TaxDeemed dividend u/s 2(22)(e) - unpaid price of purchase of assets of company - Tribunal, allowing the appeal filed by the Revenue, held that the part of price of the flat sold by the company M/s.Shree Velu Builders (P) Ltd., in which the Assessee was having substantial interest as holding more than 10% of the share holding, be treated as deemed dividend - HELD THAT:- Assessee had substantial interest in the aforesaid closely held company M/s.Shree Velu Builders (P) Ltd. and the company had sold the flat in question to the Assessee himself of which a major portion of price remained unpaid by him at the end of the previous year, which, in our opinion, has been rightly treated by the Tribunal as an advance to the Director falling within the mischief of Section 2(22)(e). The same was therefore, liable to be taxed as “deemed dividend” in the hands of the Assessee. Therefore, the Appellate Tribunal has not committed any error. We do not find any merit in the appeal filed by the Assessee and thus the questions of law are answered in favour of the Revenue and against the Assessee. Maintainability of the appeal - Instruction of CBDT for not filing or withdrawing appeal on low tax effect - binding on Tribunal or Court - HELD THAT:- The Court or the concerned Tribunal cannot compel the litigant, be it Revenue Department or the Assessee, to withdraw any such appeal from its records. The Court can only grant permission to withdraw at the request of the concerned appellant, unless there is objection raised by the other side and the Court upholds such objection. Such Instructions of CBDT are neither binding on the Court or the Tribunal, nor the Board could direct the concerned Court or Tribunal to compel the litigant to withdraw such appeal. Once the learned Tribunal has pronounced upon the merits of the appeal of the Assessee, the first contention raised by the learned counsel for the Assessee that the appeal before the Tribunal was not maintainable, is infructuous and this Court cannot set aside the order passed by the Income Tax Appellate Tribunal on merits, on account of the aforesaid Instruction No.3 of 2011 dated 09.02.2011, even if it is held to be applicable to this case.
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