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TMI Blog2016 (4) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... 90B of the Land Revenue Act before the JDA which was rejected by the JDA. The case laws relied on by the ld. A/R are squarely applicable on the facts of the case. Therefore, we hold that transactions made by the assessee and the company are for business purposes and are not deemed dividend under section 2(22)(e) of the Act. - Decided in favour of assessee - ITA No. 810/JP/2014 - - - Dated:- 4-3-2016 - SHRI R.P. TOLANI, JM SHRI T.R. MEENA, AM For The Assessee : Shri Vijay Goyal (CA) For The Revenue : Shri D.S. Kothari (CIT) ORDER PER SHRI T.R. MEENA, A.M. This is an appeal filed by the Assessee emanating from the order of ld. CIT (A), Central, Jaipur dated 09.10.2014 for the A.Y. 2010-11. The effective grounds are as under :- 1. On the facts and in the circumstances of the case and in law the learned CIT (A) erred in confirming the addition of ₹ 99,50,794/- made by ld. AO on account of deemed dividend by applying the provisions of section 2(22)(e) of Income Tax Act more so when the payment by M/s. Ashish Buildcon Private Ltd. to the assessee was not in the nature of loans and advances but advance against the sale of the land to the company in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee carried the matter before ld. CIT (A), who confirmed the addition by observing that the appellant is a Director along with his wife Smt. Renu Agarwal in M/s. Ashish Buildcon Pvt. Ltd and holding shares more than 10% in it. There was a search and survey operation carried out at the residence as well as business premises of the appellant along with that of company on 22.09.2010. The ld. A/R of the appellant furnished an unregistered Agreement to Sale dated 22.07.2009 between the appellant and the company. It has been submitted that this money was advanced in the normal course of business by company as per the said agreement to sale because it has been given by the company to the appellant as an advance for purchase of land. She held this agreement to sale as unreliable evidence due to it being not registered. During the course of search, this agreement to sale was not found. As per the Ikrarnama, the appellant Shri Ashok Kumar Agarwal had agreed to sell 1.0166 hectares of agricultural land in village Ajayrajpura, Tehsil Sanganer to M/s. Ashish Buildcon Pvt. Ltd. for ₹ 1.25 crore. It was mentioned in this Ikrarnama that the company had paid ₹ 7.25 lacs till 22. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther by way of inclusion of this land in its stock or as an advance recoverable in cash or kind. She relied on the evidences by way of return of the company to hold that the Ikrarnama furnished by the appellant is unreliable evidence. On perusal of the bank account of the appellant, it is seen that substantial amounts were being freely withdrawn by him from the books of the company as per his personal requirement. She also gave the example that ₹ 10 lacs each were withdrawn on 10.07.2009 and on 13.07.2009 for personal purposes. Other withdrawals were also made by the assessee from the company for advance tax, LIC premium, repayment of housing loan etc. She further considered the case laws cited by the ld. A/R of Hon ble Delhi High Court in the case of CIT vs. Creative Dyeing and Printing Pvt. Ltd. ITA No. 250/2009 dated 22.09.2010 and the order of the Income Tax Settlement Commission in the case of M/s. Career Point Infosystems Ltd., Shri Pramod Kumar Maheshwari, Shri Om Prakash Maheshwari and Shri Naval Kishore Maheshwari (S.A.No.RJ/JP 51/2011-12/28 to 31-IT). After examining these orders, she held that case laws referred by the assessee are completely distinguishable from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Bench in case of Shri Krishan Murari Lal Agarwal vs. DCIT (2013) (9) TMI 445. The word Advance has to be read in conjunction with the word loan . Usually attributes of a loan are that it involves the positive act of lending, coupled with acceptance by the other side of the money as loan. It generally carries interest and there is an obligation of repayment. On the other hand, in its widest meaning the term advance may or may not be proved lending, for which he relied on the decision of Hon ble Delhi High Court in the case of CIT vs. Raj Kumar, 318 ITR 462 (Delhi). Further he relied on the following decisions :- CIT vs. Om Prakash Suri (No.2) 359 ITR 41 (MP) ACIT vs. Smt. G. Sreevidya, 138 ITD 427 (Chennai ITAT) Pradip Kumar Malhotra vs. CIT, 338 ITR 538 (Cal.) CIT vs. Creative Dyeing and Printing Pvt. Ltd., 318 ITR 476 (Delhi) CIT vs. Ambassador Travels P. Ltd., 318 ITR 376 (Delhi) CIT vs. Arvind Kumar Jain, 2011-TIOL-790-HC-Del-II. 5.1. He further argued that in case of Career Point Infosystems Ltd. (supra), the Settlement Commission wherein an identical issue had been decided against the revenue. The ld. CIT (A) observed that assesee s agreement was u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and every aspect on facts and law, therefore, same is required to be upheld. 6. We have heard rival contentions and perused the material on record. On verification of copy of accounts placed at pages 38 to 39 of the Paper Book, it is seen that assessee had given money to the company. The opening balance as on 1.4.2009 was ₹ 1,12,17,000/-. Thereafter, he withdrew money from the company upto 15.7.2009. On 18.07.2009 the assessee again paid to company ₹ 7 lakhs. Thereafter assessee withdrew various amounts from the company. On 21.8.2009 again he paid ₹ 2 lakhs to company, ₹ 9.5 lakhs on 28.07.2009, ₹ 3 lakhs on 13.10.2009, ₹ 1.25 lakhs on 15.10.2009, ₹ 5 lakhs on 26.10.2009, ₹ 5 lakhs on 29.10.2009, ₹ 20 lakhs on 10.02.2010 and ₹ 60 lakhs on 10.3.2010 (Rs. 20 lakhs each) and ₹ 13 lakhs on 10.03.2010 and ₹ 1.25 lakhs on 10.3.2010 which show that there are numbers of transactions between the assessee and company. Finally, the assessee s accounts has been squared up. The assessee and company are in real estate business. It is a general practice in the line of business that most of the land are purchased and sold o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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