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TMI Blog2006 (8) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... Stone, Mathura Road, New Delhi. The notice was redirected at A-74, Sector-5, NOIDA. The notice was served at the redirected address on 6th November, 2002. The Assessing Officer as well as Ld. CIT(A) held that the notice was issued at the address mentioned in the return and the change in address was not notified by the assessee. Thus there is valid service of notice within the time prescribed and hence assessment made pursuant to such notice is also valid. 4. The Ld. Counsel for assessee Shri K.R. Manjani filed before us the copy of notice under section 143(2) dated 29th October, 2002 and also the envelope in which the same was sent through speed post. The service is affected on 6th November, 2002 as per the postal authorities stamp. Since proviso to section 143(2) requires that the notice shall be served before the expiry of 12 months from the end of the month in which the return is furnished, service of notice on 6th November, 2002 is beyond limitation period prescribed in the proviso and hence any action taken pursuant to such notice is liable to be set aside. For this proposition he relied upon the decision of Delhi High Court in CIT v. Lunar Diamonds Ltd. [2006] 281 ITR 1. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taining the notice or any certificate issued by the postal authorities or any other proof. Be that as it may, the claim of the department is two fold. It is first claimed that under section 114(e) of the Evidence Act, it is presumed that official acts have been done regularly. It is, therefore, contended that it must be presumed that the notice was served on 31-10-2001, on the partner. We are unable to appreciate how the provisions of the Evidence Act would come to the rescue of the department. Section 114(e) of the Evidence Act merely says that official acts done by Government servants are presumed to have been done regularly. This only means that in the present case there is a presumption that the notice was issued on 30-10-2001, the date on which it is claimed to have been issued and the date which it bears. The fact that the notice was sent by speed post is evidenced by the receipt issued by the postal authorities of the Head Post Office, I.P. Marg, Delhi (page 157 of the paper book). The presumption to be drawn from the receipt is that the postal authorities actually received the notice for onward transmission to the assessee and transmitted the same in the normal course of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee received an advance of Rs. 1,00,000 from M/s. Nulon Electronics Ltd. The assessee in earlier year received a sum of Rs. 59,22,000 as share application money. Out of the share application money received from M/s. Nulon Global Ltd., a sum of Rs. 59,12,000 was transferred as unsecured loan during the financial year relevant to the assessment year under appeal i.e., assessment year 2001-02. The Assessing Officer treated both the sum received as deemed dividend since the Payer Companies have sufficient accumulated profits. Ld. CIT(A) examined the list of shareholders of all the 3 Companies i.e., M/s. Nulon India Ltd. (Appellant), M/s. Nulon Global Ltd. and Nulon Electronics Ltd. He found that one Shri S.D. Goliyan had a 37 per cent share in Nulon India Ltd., 17.68 per cent share in Nulon Global Ltd. and 10 per cent share in Nulon Electronics Ltd. Ld. CIT(A) on page 9 of his order concluded as is under:- "I am fully in agreement with the contentions of the Assessing Officer reproduced above. The loan received by the assessee-company amounting to Rs. 60,22,000 has rightly been treated as deemed dividend under section 2(22)(e). The shareholders of the company giving the loa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny or otherwise) [made after 31st day of May, 1987, by way of advance or loan to a shareholder, being a person who is the beneficial owner of shares (not being shares entitled to a fixed rate of dividend whether with or without a right to participate in profits) 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 (hereafter in this clause referred to as the said concern)] 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; but "dividend" does not include- (i) a distribution made in accordance with sub-clause (c) or sub-clause (d) in respect of any share issued for full cash consideration, where the holder of the share is not entitled in the event of liquidation to participate in the surplus assets; [(ia) a distribution made in accordance with sub-clause (c) or sub-clause (d) insofar as such distribution is attributable to the capitalized profits of the company representing bonus shares allotted to its equity share holders after 31st day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olding not less that 10 per cent of voting rights. - Or to any concern in which such shareholder is a member or a partner and in which he has substantial interest. - Or any payment by any such company on behalf, or for the individual benefit, of shareholder. - To the extent to which the company possesses accumulated profits. 12. In the present case it is seen that the appellant is not a shareholder in any of the companies M/s. Nulon Global Ltd. or Nulon Electronics Ltd. The loan has been given to the appellant company. The loan is not given to any concern in which the assessee as a member or partner having substantial interest. The loan is not given to the appellant company for the benefit of any shareholder. The amount is received by the appellant company itself which is not a shareholder of any of the Payer Companies. The holding of Shri S.D. Goliyan in the appellant company to the extent of 37.5 per cent or is holding of 17.68 per cent and 8.13 per cent in Nulon Global Ltd. and Nulon Electronics Ltd. respectively will neither after the situation nor such factor will bring the payment by way of advance to the appellant company as deemed dividend under section 2(22)( e). Si ..... X X X X Extracts X X X X X X X X Extracts X X X X
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