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2019 (3) TMI 1553 - MADRAS HIGH COURTPower of tribunal to pass order based on oral concession by AR - Non consideration of grounds of appeal and written submission available on record - issue relates to reopening of assessment u/s 147 & deemed dividend u/s 2(22)(e) - identical issue came up for consideration before the Tribunal in the Assessee's own case - HELD THAT:- In the present case 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 Assessee 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 Assessee or not, the Tribunal has proceeded to record such a concession as having been made on behalf of the Assessee. No justification on the part of the learned Members of the Tribunal to record any such concession on behalf of the Assessees and make additions invoking the provision under Section 2(22)(e) of the Act in the hands of the individual Assessees viz., the shareholders of the two Companies. Unless the findings of facts are returned by the Assessing Authority on the basis of materials that the money was received by the person concerned, there was no question of taxing the same as 'deemed dividends' in the hands of the individual Assessees, who are Directors/Shareholders with substantial interest. We, therefore, cannot sustain this type of orders passed by the learned Members of the Tribunal and we are sorry to note this kind of concessions recorded unauthorisedly by the learned Members of the Tribunal. Expressing again our anguish and pain on the same, we direct that in future, if any such concession is made by any Authorised Representative on behalf of the Assessees, the Tribunal should take either an Affidavit from Assessee and the counsel on behalf of the Assessee or atleast a written endorsement made on the record of the case duly signed by them, so that no such occasion of taking a stand otherwise or contra to the alleged concession made by them, would arise before the higher Courts. Appeals of the Assessee allowed and remit the matters to the Assessing Authority for the Assessment Year 2006-2007 for deciding the same as done in the Assessment Year 2011-2012
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