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TMI Blog2015 (8) TMI 1078X X X X Extracts X X X X X X X X Extracts X X X X ..... a shareholder of the lender company and not in the hands of borrowing concern in which such share holder is a member or a partner having substantial interest. Further in the case of CIT vs. Ankitech Pvt. Ltd. (2011 (5) TMI 325 - DELHI HIGH COURT) held that a concern which is given loan or advance by a company cannot be treated as shareholder/member of the company who has advanced loan simply because a shareholder of the lender company holding power of 10% or more therein has substantial interest in such concern as such loan or advance cannot be treated as deemed dividend u/s. 2(22)(e) of the Act. Considering the facts of the present case in the light of aforesaid decisions we are of the view that in the present case no addition on acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was carried out at the business premises of the Assessee and thereafter notice u/s. 153A was issued and served on Assessee. Pursuant to notice u/s. 153A, Assessee filed its return of income for A.Y. 03- 04 on 22.10.2008 declaring total loss of ₹ 11,60,782/-. Thereafter the assessment was framed u/s. 143(3) r.w.s. 153A of the Act vide order dated 30.10.2009 and the total income was determined at ₹ 6,39,910/-. Aggrieved by the order of A.O., Assessee carried the matter before ld. CIT(A) who vide order dated 22.06.2011 allowed the appeal of the Assessee. Aggrieved by the aforesaid order of ld. CIT(A), Revenue is now in appeal before us and has filed the following grounds:- i. On the facts and circumstance of the case and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of CIT Vs. Creative Dyeing Printing Pvt.Ltd. 318 ITR 476 ignoring that in that case the Hon'ble High Court held that the transaction was in the ordinary course of business because transaction was for the benefit of the company advancing the loan as the loan was given to an ancillary company: while in the present case, there is no such benefit to the person giving the loan to the assessee. iv. On the facts and circumstance of the case and in law, the Ld CIT(A) erred in law and in facts in deleting the addition of ₹ 3,91,297 /- on account of deemed dividend wrongly relying on the decision of Hon'ble High Courts in the case of Bombay Oil Industries K Ltd. V. DCIT 28 SOT 383 and Gujarat Gas Financial Services Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered the facts and the submissions. I agree with the appellant's view. It is a fact that the appellant is not the shareholder in M/s.Newton Construction Pvt. Ltd. from whom it has received the amount. It is only Smt. Maya G. Dokania who is having 18.33% share holding in M/s. Newton Construction P. Ltd., and has 42.12% share holding in the assessee company. In the case of CIT vs Hotel Hilltop 313 ITR 116 (Raj.), CIT vs Rajkumar Singh Others 295 ITR 9 (All.) and also in the case of Nulon India Ltd. vs ITO 12 SOT 260 (Del.), it was held that the provision of section 2(22)(e) is not attracted only because there is common share holding between the giver and the receiver concern whereas the concern receiving the amount is not the share h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he borrowing concern in which such share holder is member or partner having substantial interest. He also placed reliance on the decision of Delhi High Court in the case of CIT vs. Ankitech Pvt. Ltd. and Ors. (2012) 340 ITR 14. He thus supported the order of ld. CIT(A). 9. We have heard the rival submissions and perused the material on record. It is an undisputed fact that Smt. Maya Dokania holds 18.33% of share holding in Newton Construction Pvt. Ltd. and 42.12% share holding in Assessee company. Assessee is not a share holder in Newton Construction Pvt. Ltd. from whom it has received amount. We find that the Hon'ble Special Bench in the case of ACIT vs. Bhaumik Color Pvt. Ltd. (supra) has held that deemed dividend can be assessed o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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