TMI Blog2008 (3) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... devan for the Appellant A. K. Jasani for the Respondent. JUDGMENT The judgment of the court was delivered by F. I. Rebello, J 1 . The revenue has preferred this appeal on the following questions : "(i) Whether on facts and in the circumstances of the case and in law, the ITAT was right in law in holding that the dejure owner of the shares alone is entitled to the dividend declared by a company, though the assessee company might be defacto owner of shares but had no right to receive the dividend from the company unless it is the registered shareholder of the company ? (ii) Whether on facts and in circumstances of the case, the ITAT was right in law in holding that the dividend of Rs.16,84,150/- has not accrued to the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee, the learned Tribunal relied on orders of co-ordinate benches, which had taken a view that such dividend in the hands of the owners which are not registered in his name in the books of the company could not be assessed as income in hands of the assessee and accordingly dismissed the appeal. It is this order which is subject matter of the present appeal. 4. On behalf of the revenue, it is submitted by the learned Counsel that as the assessee has paid the consideration, for all purposes they are the owners of the shares and consequently the dividend ought to be assessed in the hands of such a person. On the other hand on behalf of the assessee, it is submitted that the shares are not registered in their name in the books of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dividend from the transferor has lodged the security and all other documents relating to the transfer be which required by the company with the company for being registered in his name within fifteen days of the date on which the dividend became due." 8. It is thus provided that the person in whose name the securities appear in the books of the company issuing the said securities, is entitled to receive and retain any dividend declared by the company, notwithstanding that the said security has already been transferred by him for consideration, unless the transferee who claims the dividend from the transferor has lodged all the documents which must be required by the company for the registeration. In the event this has been don ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dividends from : when the owner's right investments in to receive payment is shares established. 10. Nothing has been brought to our attention to show that under the provisions of the Companies Act and the provisions of the Securities Contract Act that there is any other standard or statutory rules under the Income-tax Act by which such dividend can be taxed in the hands of the assessee. 11. The other aspect of the matter which needs to be considered is that the burden of proving that an amount was taxable because it was received in the year of account lies upon the department. This proposition has been reiterated in CIT V/s. Bikaner Trading Co.Ltd. , reported in [1970] 78 ITR 12. Income of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d S.Mehta's affidavit in the case of Benami shares ; (d) Shares which are lost or stolen. 13. The A.O. has further set out that in respect of all these categories the ownership of the assessee has not been recognised by any person or any authority. The A.O. has recorded finding that dividend income has not been received by the Custodian in respect of the shares referred to above. The dividend also has been received by some other person. There is also nothing brought on record to indicate that the assessee in terms of section 27(1) of the Securities Contract Act has lodged the shares for transfer. 14. Considering these circumstances, in our opinion, we find no reason to interfere with the findings recorded by the Commissioner (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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