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Application of Section 104 of the Income Tax Act, 1961 on a company's undistributed income due to prior losses. Analysis: The judgment pertains to the application of Section 104 of the Income Tax Act, 1961, which empowers the Income Tax Officer (ITO) to levy additional income tax on companies not substantially owned by the public that fail to distribute dividends. In this case, the assessee, a company in which the public are not substantially interested, did not distribute dividends despite having distributable profits. The ITO applied Section 104, prompting the assessee to rely on subsection (2) of the section, arguing that prior losses justified the decision not to distribute dividends. The ITO disputed the existence of prior losses, relying on findings from previous assessment orders which deemed the losses fictitious and considered the company to have made substantial profits. The crux of the issue revolved around whether to rely on the company's book figures or the assessments of prior years to determine the existence of losses justifying the non-distribution of dividends. The Supreme Court precedent established that estimated income in assessment orders could be considered in proceedings related to the levy of additional income tax on undistributed income. However, the ITO must have evidence to support his findings on prior losses, and if assessment orders have been set aside or modified in appeal, the revised findings become relevant. The Tribunal in this case disregarded the assessment orders of prior years and based its decision on the appellate decisions, concluding that the company had indeed incurred losses in previous years, justifying the non-distribution of dividends. The Tribunal's approach was deemed appropriate as it considered the appellate decisions on prior assessments to determine the reality and extent of the company's losses in earlier years. The judgment highlighted that findings in assessment orders lose their finality if revised in appeal or revision, emphasizing the need for evidence to support the ITO's decision regarding the company's prior losses. Consequently, the Tribunal's decision to rely on appellate decisions rather than assessment orders was upheld, leading to the dismissal of the department's appeal and the directive for the Commissioner of Income Tax to bear the assessee's costs.
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