TMI Blog2018 (5) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 (9) TMI 74 - CALCUTTA High Court] facts of this case is factually incorrect. Nonapplication of mind by the AO to an issue makes the order of assessment erroneous. This error is prejudicial to revenue. - Decided against assessee. - I.T.A No. 1225/Kol/2017 - - - Dated:- 18-5-2018 - Shri J. Sudhakar Reddy, AM And Shri A.T. Varkey, JM For The Appellant : Shri B.K. Chatorvedi, AR For The Revenue : Shri G. Mallikarjuna, CIT, DR ORDER Per J.Sudhakar Reddy, AM This is an appeal filed by the assessee directed against the order of the Principal Commissioner of Income Tax-2, Kolkata passed u/s 263 of the Income Tax Act, 1961 ( the Act ). 2. The assessee is a company and is in the business of cultivation and manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT vs. Jayshree Tea Industries Ltd. reported in 253 ITR 608, Dividend Distribution Tax has been rightly levied on the 40% of the amount of Dividend Distributed. But, the revenue has filed an SLP on this issue which is still pending before Hon'ble Supreme Court. In view of the above, I have decided to restore this issue to the AO with instruction to re-examine the issue and pass a speaking order after giving opportunity to the assessee company. Aggrieved the assessee is in appeal before us challenged the only direction of the Ld. Pr. CIT in the order passed u/s 263 of the Act, given to the assessing officer, in respect of Dividend Distribution Tax which are at page 4 para 2 of his order, which is extracted above. The ld. counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal before the Hon'ble Supreme Court, no jurisdiction lies with the Commissioner to revise the assessment order u/s 263 of the Act. He also relied on the decision of the Hon ble Bombay High Court in the case of CIT vs. Paul Brothers reported in 216 ITR 548 (Bom) for the proposition that the order of the assessing officer, based on the decision of the High Court, cannot be revised. He prayed that these directions of the ld. CIT be vacated. 6. The ld. CIT DR on the other hand submitted that the issue is covered against the assessee by the judgment of the Hon'ble Supreme Court in the case of Union of India and Ors. Vs. M/s Tata Tea Company Ltd. Ors. CA no. 9178 of 2012 and other judgment dated 20.09.2017. 7. He further subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o application of mind by the assessing officer on this issue during the course of assessment or in the assessment order. Hence the argument of the ld. counsel of the assessee, that the assessing officer has applied the proposition of law laid down by the Hon ble High Court in the case of Jayshree Tea Industries Ltd. to the facts of this case is factually incorrect. Nonapplication of mind by the AO to an issue makes the order of assessment erroneous. This error is prejudicial to revenue. 10. Be as it may, this decision of M/s Jayshree Tea Industries Ltd. was in challenge before the Hon'ble Supreme Court. While its SLP against the judgment of Jayshree Tea Industries Ltd. was dismissed by the Hon'ble Supreme Court on the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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