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2024 (1) TMI 614 - MADRAS HIGH COURTRevision u/s 264 - Claiming benefit of DTAA - refund of Dividend Distribution Tax (DDT) which was paid wrongly - revision application was rejected on the grounds that the petitioner could have filed a revised return or an appeal u/s 248 of the Income Tax Act - petitioner declared and paid dividend to its holding company which became aware that, as per Section 90 it is entitled to the benefit of the Double Taxation Avoidance Agreement (DTAA) between India and Mauritius - HELD THAT:- The rejection is not on the merits of the application but on the grounds that the petitioner could have filed a revised return or presented an appeal under Section 248 of the Income Tax Act. As regards the option of filing a revised return, learned counsel for the petitioner pointed out that the time limit for filing such revised return expired. In any event, when a statute prescribes a remedy, the petitioner cannot be denied the benefit of availing of such remedy merely because an alternative remedy may be available. This can, no doubt, be done if the remedy is discretionary but not if the remedy is statutory. Therefore, the first ground of rejection in the impugned order is untenable. On examining Section 248 of the Income Tax Act, it is evident that it applies to a case where the tax deducted on payments made u/s 195 of the Income Tax Act to a non-resident, other than by way of interest, is required to be borne by the person by whom the income is payable (i.e. the person making the payment) as per contract or arrangement between the parties and the person making the deduction claims that tax was not payable. The case on hand pertains to the declaration and distribution of dividend by the petitioner, a company, to its shareholders and the tax payable thereon. This was not a case where a deduction was made u/s 195 towards tax on payments made to a non-resident and the parties had agreed that the deducting resident entity would bear the tax liability by compensating the non-resident by a proportional top up. Therefore, Section 248 is clearly inapplicable. The second ground on which the revision petition was rejected is also consequently unsustainable. Thus the impugned order is quashed and the matter is remanded for reconsideration on merits by the Principal Commissioner of Income Tax.
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