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TMI Blog2014 (10) TMI 897X X X X Extracts X X X X X X X X Extracts X X X X ..... no argument. Hence, this issue of assessee’s appeal is dismissed. Assessment under Section 153A - Held that:- It is not open for the assessee to seek deduction or claim expenditure which has not been claimed in the original assessment, which assessment already stands completed, only because a assessment under Section 153A of the Act in pursuance of search or requisition is required to be made. - IT(SS)A Nos. 57 & 58/Kol/2011, IT(SS)A Nos. 70 & 71/Kol/2011 & IT(SS)A No. 72/Kol/2011 - - - Dated:- 17-10-2014 - Shri Mahavir Singh, Judicial Member and Shri Shamim Yahya, Accountant Member For the Appellant: Shri S.K.Tulsiyan, Advocate For the Respondent: Dr. Swetabh Suman, CIT-DR O R D E R PER BENCH:- These two appeals by assessee are arising out of separate orders of Commissioner of Income Tax (Appeals), Central-I, Kolkata in appeals Nos.377 378/CIT(A),C-I/CC-V/09-10 by different dates i.e. 05-01-2011 06.01.2011 respectively. All these three appeals by Revenue are arising out of separate orders of Commissioner of Income Tax (Appeals), Central-I, Kolkata in appeals Nos.361, 360 376/CIT(A),C-I/CC-V/09-10 dated 03-01-2011 and 04.01.2011. Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the A.O. erred in adding back an amount of ₹ 2,06,214/- on account of alleged advance taken from M/s Mima Flour Mills (P) Ltd., as Deemed Dividend u/s 2(22)(e) of the Income-tax Act, 1961 and ground no 4 taken by the appellant is that the A.O. erred in add ng back an amount of ₹ 5,21,010/- on account of alleged advance taken from M./s Ganesh Wheat Products Ltd., as Deemed Dividend u/.s2(22)(e) of the Income-tax Act, 1961. The assessing Officer in para 4 of the order has discussed in deta l the reason for making addition on account of deemed dividend under section 2(22)(e) of the Act . Further the above addition has been made by the A.O after giving show cause to the assessee to expla n why the loan amount in question should not be treated as deemed dividend as per provision of section 2(22)(e) of the Act. However no explanation to the show cause was offered. Hence consider ng the fact of the case and the provision of the Act , the add tion. of ₹ 2,06,214/ and ₹ 5,21,010/ made by the A.O under section 2(22)(e) is confirmed. Accordingly ground no 3 and 4 taken by the appellant s dismissed. 4. We have heard rival submissions and gone through fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the books of M/s. Mima Flour Mills (P) Ltd. it is seen that on several dates there were shifting balances. On many occasions the balance was in favour of the assessee and on some other occasions the balance was in favour of Ganesh Wheat Products (P) Ltd. It is thus evident that there were reciprocal demands between the parties and thus mutual in characteristic. The account so maintained in respect of such mutual transfer of amount by way of giving and taking financial assistance is, therefore, a current account and this current account is different from a loan account for the sole reason that feature of mutuality is not present in a loan transaction. 5. Here in the present case, from the facts narrated above, it is clear that both the parties are beneficiary of the transaction being current account of the above transactions i.e. shifting balances. This issue has been answered by Hon ble Calcutta High Court in the case of Pradip Kumar Malhotra v. CIT 338 ITR 538 (Cal) wherein Hon ble High Court held as under: The phrase by way of advance or loan appearing in sub-clause (e) of section 2(22) of the Income-tax Act, 1961, must be construed to mean those advances or l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2)(e) of the Act, being a deeming section, cannot be applied to current account. In such circumstances, we delete the addition and this common issue of assessee s appeals is allowed. From the above, it is clear that the issue is covered and hence, we allow this common issue of assessee s appeals. 5. The next issue in IT(SS)A No.58/K/2011 of assessee is against the order of CIT(A) confirming the disallowance on account of expenditure under miscellaneous receipts. For this assessee has raised following ground no.2: 2. On the facts and in the circumstances of the case, the Ld. CIT(A) erred in confirming the disallowance of the expenditure claimed at ₹ 50,000/- under Miscellaneous Receipts. 6. Briefly stated facts are that there was a search and seizure operation carried out on the business and residential premises of the assessee on 04-10-2007 along with the Memani Group of cases. Accordingly, notice u/s 153A of the Act was issued and in response to the same, assessee filed return of income. The AO while framing the assessment made additions of above noted expenses. The CIT(A) also confirmed the addition. Aggrieved, now assessee came in appeal before Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the completed assessments, the same can be tinkered only based on the incriminating material found during the course of search or requisition of documents. The Allahabad High Court in Commissioner of Income-tax (Central, Kanpur v. Smt. Shaila Agarwal (supra) has held as under:- 19. The second proviso to Section 153A of the Act, refers to abatement of the pending assessment or reassessment proceedings. The word 'pending' does not operate any such interpretation, that wherever the appeal against such assessment or reassessment is pending, the same alongwith assessment or reassessment proceedings is liable to be abated. The principles of interpretation of taxing statutes do not permit the Court to interpret the Second Proviso to Section 153A in a manner that where the assessment or reassessment proceedings are complete, and the matter is pending in appeal in the Tribunal, the entire proceedings will abate. 20. There is another aspect to the matter, namely that the abatement of any proceedings has serious causes and effect in as much as the abatement of the proceedings, takes away all the consequences that arise thereafter. In the present case after dedu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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