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TMI Blog2012 (7) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... tter simply because a shareholder of the lender company holding voting power of 10 per cent or more therein has substantial interest in such concern, and such loan or advance cannot be treated as deemed dividend under s.2(22)(e) at the hands of such a concern - the loan obtained by assessee-company in the “N” Trust had 20% share holding from a company in which “N” Trust had 10% share holding, could not be taxed as deemed dividend u/s.2(22)(e) since “N” Trust was only a registered shareholder and not a beneficial shareholder - in favour of assessee. - I.T.A. No.922/Ahd/2010 - - - Dated:- 22-6-2012 - SHRI MUKUL Kr.SHRAWAT, AND SHRI A.K. GARODIA, JJ. Appellant by : Shri Dhiren Shah Respondent by : Shri Samir Tekriwal, Sr.D.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose electrical fittings which are independently used as electrical fittings in respect of those Assets depreciation @ 15% is only allowable. In the instant case we find that both the parties before us have not brought on record details of the Asset under question so as the issue can be completely adjudicated by us. In the circumstances in our considered opinion it shall be in the interest of the justice to restore this issue back to the file of the Learned Assessing Officer for proper verification and after that adjudication of the issue afresh in the light of the observations made hereinabove. We order accordingly. The Learned Assessing Officer shall pass the order afresh on this issue after proper verification and after allowing reasonabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4900 49% Shri Milan R.Patel 4900 49% 2. Troikaa Pharmaceuticals Pvt.Ltd. Name of share holders No.of shares held Percentage of share held Shri Ketan R.Patel 1622298 38.91% Shri Milan R.Patel 993708 23.83% 4.2. In this regard, the assessee has contested that the provisions of section 2(22)(e), i.e. deemed dividend is applicable when a shareholder takes loans and advances from the company (not being a company in which public is substantial interest). It was explained that if a loan is taken by a company which is not a shareholder of the company who is giving the4 loan, then the issue of deemed dividend is not applicable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Rs.1,22,360/- and the same was taxed as dividend in the hands of the assessee. The matter was carried before the first appellate authority. 5. Before ld.CIT(A), an issue was raised that the assessee has accepted inter-corporate deposit which is different from the loans and advances . The assessee has relied upon the order of ITAT Mumbai Bench H (ITA No.2985(MUM.) of 2005 for A.Y. 2001-02) pronounced in the case of Bombay Oil Industries Ltd. vs. DCIT reported at (2009) 28 SOT 383 (Mum.), dated 22/01/2009. As against that, ld.CIT(A) was of the view that if treating the interpretation of loans and advances different from the inter-corporate deposit then the applicability of the provisions of section 2(22)(e) of the I.T.Act would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be treated as shareholder/member of the latter simply because a shareholder of the lender company holding voting power of 10 per cent or more therein has substantial interest in such concern, and such loan or advance cannot be treated as deemed dividend under s.2(22)(e) at the hands of such a concern. 7.1. It was further held that a payment made by an another company to the assessee-company, being a business transaction, which has benefited both the companies, then the provisions of section 2(22)(e) do not apply. It is worth to mention that the decision of Bhaumik Colour Pvt. Ltd. reported at (2009) 120 TTJ 865 (Mum.)[SB] was approved. Further, in the case of DCIT vs. Atul Engg.Udyog reported at (2011) 57 DTR 433(Agra)(Trib) hel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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