Manish Chugh, Kolkata vs Assessee

आयकर अपील य अधीकरण, यायपीठ - "A", कोलकाता, IN THE INCOME TAX APPELLATE TRIBUNAL "A" BENCH : KOLKATA (सम ) ी महावीर संह, यायीक सद य एवं ी शामीम याहया , लेखा सद य [Before Hon'ble Shri Mahavir Singh, JM & Hon'ble Shri Shamim Yahya, AM ]

C.O No.159/Kol/12 [arising out of ITA No. 1768/Kol/12 A.Y 2009-10]

MANISH CHUGH Vs. A.C.I.T, Cir-28, Kolkata PAN: ACTPC 7069E [ Cross Objector/Appellant] [Rrespondent] Appellant by : Shri K.M Roy, FCA, ld.AR

Respondent by : Shri Kalyan Nath, JCIT, ld.DR सुनवाई क तार ख/Date of Hearing : 18-02-2015 घोषणा क तार ख/Date of Pronouncement:20-02-2015 आदेश /ORDER

ी शामीम याहया , लेखा सद य Shri Shamim Yahya, Accountant Member

This cross objection is filed by the assessee against the order of the ld.CIT(A) dated 07.09.2012 pertaining to assessment year 2009-10.

2. The cross objection was originally filed in response to revenue's appeal in ITA No.1768/Kol/2012 for the assessment year 2009-10. The revenue's appeal as well as the cross objection were subject matter of earlier order of this tribunal dated 19-02-2014. Subsequently, the assessee filed Misc. Application Nos.09 & 10/Kol/2014 [arising out of ITA No.1768/Kol/2012 & CO No.159/Kol/2012 for the assessment year 2009-10. Vide order dated 19-12-2014, it was held that ground no.3 of assessee's cross objection has not been adjudicated by the tribunal while passing said order. We have gone through the order and find ground no.3 of assessee's cross objection regarding not reducing the interest charged to Rs.7,07,966/- has not been adjudicated by the tribunal. Hence, the same may be recalled.

3. Pursuant to the order dated 19-12-2014 of said Misc. Applications, this cross objection was posted for hearing today. Ground no.3 of this cross objection, which is to be adjudicated reads as under:-

"3. That without prejudice to Ground No.2 above, the ld.CIT(A) has erred in not reducing the interest charged to Rs.7,07,966/- from the amount of deemed dividend."

2 C.O No.159/Kol/12-A Munish Chugh

4. The main issue subject matter of the appeal in this case pertained to the order of the ld.CIT(A), wherein he had deleted the addition of Rs.50,19,906.00 made under the head 'deemed dividend' u/s. 2(22)(e) of the Act by holding that the assessee had actually received Rs.10.20 lacs as loan in the financial year under assessment from a company in which he had substantial interest. The ITAT in its order dated 19-02-2014 vide para 7 has held as under:-

"7. We find that this is a factual position as noted by CIT(A) that the sum of Rs.50,19,906/- being opening balance as on 01.04.2008 can never become the subject matter of addition by invoking the provisions of section 2(22)(e) of the Act being deemed dividend for the reason that this is merely an opening balance and the same cannot be added in this year. However, the assessee has received a sum of Rs.10.20 lacs during the year and also charged interest at Rs.7,07,966/- and the same has rightly been restricted by CIT(A) and deleted the balance addition of Rs.50,19,906/-. We find no infirmity in the order of CIT(A) and both the issues that of revenue and assessee are dismissed."

5. Now assessee wants adjudication of ground no.3 in the cross objection. The assessee urges that the ld.CIT(A) has erred in not reducing the interest charged for Rs.7,07,966/- from the amount of deemed dividend.

6. We have heard both the ld. Counsel and perused the record. It transpires that this issue of reducing the interest charged for Rs.7,07,966/- from the amount of deemed dividend was not raised before the ld.CIT(A) by the assessee. We find that no cogent reason has not been put as to why this issue was not raised before the ld. CIT(A) by the assessee. It is also noted that this matter is pertaining to question of fact and not question of law. There is no reason why the same should be raised for first time before the tribunal. Further we note that the ld.DR has submitted that this amount of interest of Rs.7,07,966/- was only book entry and the same was not actually paid. In these circumstances, we find that this issue having not been raised before the ld.CIT(A) by the assessee and the same pertains to matter of fact cannot be raised before the tribunal for the first time. Accordingly, this issue of assessee's cross objection stands dismissed.

7. In the result, this issue of assessee's cross objection stands dismissed.

Order pronounced in the open court on 20- 02-2015

\

Sd/- Sd/- [ महावीर संह, यायीक सद य] [शामीम याहया, लेखा सद य] [ Mahavir Singh, Judicial Member] [ Shamim Yahya, Accountant Member तार ख/ Dated:20/02/2015 3 C.O No.159/Kol/12-A Munish Chugh

आदेश क त ल प अ े षत/Copy of the order forwarded to:

1. अपीलाथ /Appellant- Shri Manish Chugh 470A, Block-K, New Alipore, Kol-

53. 2 यथ / Respondent : The ACIT,Cir-28, Kol.

3. आयकर क मशनर/ CIT,

4. आयकर क मशनर (अपील)/CIT(A),

5. वभा गय तनीधी/DR, Kolkata Benches, Kolkata

*PP/SPS [स या पत त/True Copy]

आदेशानुसार/ By order, पंजीकार/Asstt Registrar