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TMI Blog2021 (8) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... order under section 154 - CIT(A) has rejected the claim in his order on merits of the issue and considering the provision of the Act. We have held above that learned CIT(A) misled himself and his order is not legally sustainable. Hence, we set aside the order of learned CIT(A) and decide the issue in favour of the assessee. - I.T.A. No. 7707/Mum/2019 - - - Dated:- 2-8-2021 - Shri Shamim Yahya (AM) And Shri Pavankumar Gadale (JM) Assessee by : Shri Nitesh Joshi Shri Sukhsagar Syal Department by : Shri Vijaykumar Menon ORDER Per Shamim Yahya (AM) :- This appeal by the assessee is directed against the order of learned CIT(A) dated 23.10.2019 pertains to A.Y. 2012-13. 2. The grounds of appeal read as under : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that pursuant to the assessment order in this case, the assessee made an application under section 154 of the Act for refund of dividend distribution tax (DDT) paid. The Assessing Officer duly acknowledged that he finds the claim to be correct but refund actually was not granted. 4. Upon assessee s appeal learned CIT(A) found the claim not maintainable as in his opinion DDT was not to be equated to income tax paid. We may gainfully refer to the Assessing Officer and learned CIT(A) s order on this issue as under: The Assessing Officer s order is as under on this issue :- In this case order giving effect to order u/s 263 of the Act was passed on 29.06.2018 determining total income at ₹ 761,69,04,880/- under normal provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 39,22,08,900/- was correct and the credit of the same was to be given. However, it is the contention of the assessee that such credit has not been given. 6 The assessee in their submission, have mentioned that they are entitled for refund of ₹ 98,14,515/- (being the excess amount of DOT paid) in view of section 240 r.w.s.237 of the Act and therefore the AO should be directed to refund the excess DOT of ₹ 98,14,515/- along with interest u/s.244 of the Act. On without prejudice, the appellant has submitted that DOT liability be adjusted against tax liability of ₹ 19,04,48,360/- determined in the impugned order in appeal. The appellant further placed reliance on the decision in the case of Gopalan Thygarajan v. CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x and super-tax chargeable under the provisions of this Act prior to the aforesaid date and in relation to the assessment year commencing on the 1st day of April, 2006, and any subsequent assessment year includes the fringe benefit tax payable under section 115WA. 6.3.2 On conjoint reading of section 237 and definition given of section 2(43) of the Act, it is clear that the word tax as has been mentioned in section 237 which has been defined in section 2(43) does not include the Dividend Distribution Tax paid u/s.115-O of the Act. Accordingly, the refund as has been sought by the assessee claiming the credit of such tax to be income-tax paid in terms of section 2(43) of the Act and therefore u/s.237 of the Act is not found to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee is in appeal before us. Though the grounds of appeal are poorly framed but the crux is that assessee is aggrieved by learned CIT(A) s action of denying the assessee s claim of refund of DDT paid, by holding that DDT is not income tax paid. 6. Learned Counsel of the assessee contends that assessee s claim is very much maintainable as the section 115O of the I.T. Act defines DDT as additional income tax and Hon'ble Gujarat High Court in Torrent (P) Ltd. Vs. CIT (35 taxmann.com 300) has held that DDT is to be treated as tax paid. 7. Per contra learned Departmental Representative relied upon the order of learned CIT(A). He further claimed that the claim can never be a subject matter of rectification of order under section 154 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, a company shall be a subsidiary of another company, if such other company, holds more than half in nominal value of the equity share capital of the company. 9. Hon'ble Gujarat High Court in Torrent (P) Ltd. in para 18 has observed as under :- In the instant case, certain dividend was declared and tax thereon was actually paid, by virtue of the High Court sanctioning the amalgamation scheme, which took effect from a date anterior to the declaration of the dividend would change the very character of such payment and such payment ceased to enjoy the character of dividend. In that view of the matter, the petitioner was perfectly justified in seeking refund of the tax already paid. In the return filed, the petitioner had filed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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