JUDGMENT : Dr. Vineet Kothari, J. 1. The Assessee has filed this appeal under Section 260A of the Income Tax Act, 1961 ('Act' in short), aggrieved by the order of the learned Income Tax Appellate Tribunal, 'A' Bench, Chennai, dated 29.12.2016 in ITA No.2655/MDS/2016, raising the following substantial questions of law: "1. Whether the Appellate Authority was right in law to hold that the transaction of transferring the asset of the Company for a due consideration amounts to dividend as per the provisions of Section 2(22)(e) of the Income Tax Act, 1961? 2. Whether the Authorities were right in preferring an appeal against the order passed by the CIT(A) deleting the addition done by the Assessing Officer holding that the transaction does not fall under the purview of Sec.2(22)(e) of the Income Tax Act, 1961 in derogation of the bar imposed by the CBDT vide its Circular No.21/2015 dated 10th December 2015 in filing appeals by the Department before the Income Tax Appellate Tribunal?” 2. The learned Tribunal, allowing the appeal filed by the Revenue, held that the part of price of the flat sold by the company M/s.Shree Velu Builders (P) Ltd., a company in which the Assessee was having substantial interest under Section 2(22)(e), as holding more than 10% of the share holding, be treated as deemed dividend taxable under Section 2(22)(e) of the Act. 3. The findings of the learned Tribunal are quoted below for ready reference: “4. Appearing for the Department, Ld.DR argued that the assessee 10% shareholder in M/s.Vishnu Builders (SIC M/s.Shree Velu Builders (P) Ltd.), a company in which public are not substantially interested. As on 01.04.2007, the accumulated profits of the company was Rs.84,51,787/-. During the FY 2007-08, the assessee company has transferred the flat constructed to the assessee valued at Rs.38 lakhs which was debited to the current account of the assessee maintained with the company and resulted in outstanding balance of Rs.32,25,049/- (Dr) payable to the company. Therefore, there was an outstanding balance of Rs.32,25,049/- (payable) in the books of the company as advance outstanding in the name of the assessee which attracts provisions of Section 2(22)(e) of Income Tax Act. On the other hand the ld.A.R. relied on the orders of the Ld.CIT(A) and the orders of this tribunal in his own case. 5. We heard the rival submissions and perused the orders of the lower authorities. On the other hand the ld.A.R. relied on the orders of the Ld.CIT(A) and the orders of this tribunal in his own case. 5. We heard the rival submissions and perused the orders of the lower authorities. As per Sec.2(22)(e) of the Income Tax Act deemed dividend is - “any payment by a company, not being a company in which the public are substantially interested, of any sum (whether as representing a part of the assets of the company or otherwise) by way of advance or loan to a shareholder being a person who is the beneficial owner of shares holding not less than ten per cent of the voting power, or to any concern in which such shareholder is a member or a partner and in which he has a substantial interest or any payment by any such company on behalf, or for the individual benefit, of any such shareholder, to the extent to which the company in either case possesses accumulated profits.” 6. From the above definition, deemed dividend u/s.2(22)(e) is any payment by a company in the form of advance or loan in the case of shareholder holding shares about 10% is to be treated as deemed dividend and the assessee has satisfied all the conditions to tax the advance as deemed dividend which is explained as under: (i) The assessee is a 20% shareholder in the company. (ii) Company is not a company in which public are substantially interested. (iii) The company is having accumulated profits of Rs.25,66,774/- and (iv) The company has transferred flat of Rs.38.00 lakhs to the assessee and the amount debited to the current account of the assessee which resulted in debit balance of Rs.31,57,569/-. 7. The amount of Rs.31,57,569/- is outstanding as a loan/advance being the amount excess drawn in the current account, which is nothing but a loan/advance because of the transfer of the company asset to the assessee. Though, the amount paid is not in cash, the asset of the company (money's worth) was transferred to the assessee resulting into reduction of the assets of the company and the ultimate result is outstanding as a loan from the assessee. Though, the amount paid is not in cash, the asset of the company (money's worth) was transferred to the assessee resulting into reduction of the assets of the company and the ultimate result is outstanding as a loan from the assessee. Therefore, the transfer of assets which resulted in a advance/loan is held to be payment by the company to the assessee and falls within the four corners of the deemed dividend as per the provisions of the Sec.2(22)(e) of the Income Tax Act. The Hon'ble Supreme Court in the case of Kanthilal Manilal Vs. CIT (41 ITR 275) held that “Dividend need not be distributed in money; it may be distributed by delivery of property or right having monetary value”. We reproduced the relevant extract of the Hon'ble Supreme Court cited supra. Dividend need not be distributed in money; it may be distributed by delivery of property or right having monetary value. The resolution, it is true, did not purport to distribute the right amongst the shareholders as dividend. It did not also take the form of a resolution for distribution of dividend; it took the form of distribution of a right which had a monetary value. But by the form of the resolution sanctioning the distribution, the true character of the resolution could not be altered. We are, therefore, of the view that the High Court was right in holding that the distribution of the right to apply for and obtain two shares of the Bank of India (at half their market value) for each share held by the shareholders of the mills amounted to distribution of dividend. 8. The Hon'ble ITAT “B” Bench in the decision relied upon by the CIT in the assessee's own case and also Ld.CIT(A) have not considered the judgment of the Hon'ble Supreme Court cited supra. Therefore, we hold that the payment made to the assessee by the company is rightly brought to tax by the AO as deemed dividend and the addition made by the AO is confirmed. 9. In the result, the appeal of the Revenue is allowed.” 4. Therefore, we hold that the payment made to the assessee by the company is rightly brought to tax by the AO as deemed dividend and the addition made by the AO is confirmed. 9. In the result, the appeal of the Revenue is allowed.” 4. Learned counsel for the Assessee, Mr.A.V.Arun, submitted that since the tax effect of the appeal before the Income Tax Appellate Tribunal was below the prescribed limit of Rs.10,00,000/- in view of Instruction No.3 of 2011 dated 09.02.2011 issued by the Central Board of Direct Taxes, the appeal filed by the Revenue before the Income Tax Appellate Tribunal itself was not maintainable and therefore the learned Tribunal could not have pronounced upon the merits of the case and allowed the Revenue's appeal. On the merits of the case, he submitted that the unpaid price of the flat would not be taxable as 'deemed dividend' under Section 2(22)(e) of the Act. The learned counsel for the Assessee has also relied upon the judgment of the Hon'ble Supreme Court in Director of Income Tax, Circle 26(1), New Delhi vs. S.R.M.B.Dairy Farming (P) Ltd., reported in (2018) 13 SCC 239 , in support of his preliminary contention. 5. Per contra, Mr.T.R.Senthilkumar, learned Senior Standing Counsel for the respondent, submitted that the case falls within the exception of Clause 6(c) of the said Instruction No.3 of 2011 dated 09.02.2011 and therefore the Revenue was not bound to withdraw the said appeal from the Tribunal and the Tribunal has rightly decided the case on merits. On the merits of the case, the learned counsel for the Revenue has supported the impugned order and submitted that the unpaid price of the flat sold by the company to the Director-Assessee, of which the major part of the sale price was not paid by the Director, the Tribunal rightly treated the said unpaid price as an advance given by the company to the Director and it falls within the four corners of Section 2(22)(e) of the Act, and was therefore rightly taxed as 'deemed dividend' in the hands of the Assessee. 6. Having heard the learned counsels, we are satisfied that no substantial question of law arises in the present appeal filed by the Assessee for our consideration. 6. Having heard the learned counsels, we are satisfied that no substantial question of law arises in the present appeal filed by the Assessee for our consideration. As far as the maintainability of the appeal is concerned, Instruction No.3 of 2011 dated 09.02.2011 akin to the recent Circular No.3 of 2018 dated 11.07.2018, only laid down the internal guidelines as a Litigation Policy for the Revenue Authorities to either not to file such appeals before the concerned forum, viz. Income Tax Appellate Tribunal, High Court or Supreme Court, depending upon the quantum of tax effect. There are certain exceptions in the said Instructions also where such appeals can be maintained and argued on merits in the same Courts and Forums, even if tax effect is below the prescribed limit. It is for the appellant – litigant to act in accordance with such internal instructions of the Board. The Court or the concerned Tribunal cannot compel the litigant, be it Revenue Department or the Assessee, to withdraw any such appeal from its records. The Court can only grant permission to withdraw at the request of the concerned appellant, unless there is objection raised by the other side and the Court upholds such objection. Such Instructions of CBDT are neither binding on the Court or the Tribunal, nor the Board could direct the concerned Court or Tribunal to compel the litigant to withdraw such appeal. 7. Once the learned Tribunal has pronounced upon the merits of the appeal of the Assessee, the first contention raised by the learned counsel for the Assessee that the appeal before the Tribunal was not maintainable, is infructuous and this Court cannot set aside the order passed by the Income Tax Appellate Tribunal on merits, on account of the aforesaid Instruction No.3 of 2011 dated 09.02.2011, even if it is held to be applicable to this case. 8. 8. Coming to the merits of the case, we do not find any substantial questions of law arising in the present case, as admittedly on facts, it was found by the learned Tribunal that the Assessee had substantial interest in the aforesaid closely held company M/s.Shree Velu Builders (P) Ltd. and the company had sold the flat in question to the Assessee himself of which a major portion of price remained unpaid by him at the end of the previous year, which, in our opinion, has been rightly treated by the Tribunal as an advance to the Director falling within the mischief of Section 2(22)(e) of the Act. The same was therefore, liable to be taxed as “deemed dividend” in the hands of the Assessee. Therefore, the Appellate Tribunal has not committed any error. We do not find any merit in the appeal filed by the Assessee and thus the questions of law are answered in favour of the Revenue and against the Assessee, and accordingly the appeal is dismissed. No costs.