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TMI Blog2017 (5) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation and the facts are not correct in accordance with law. We answer the second substantial question of law accordingly that the ITAT has not committed any error of law in remanding the matter to the Assessing Officer. We do not find any merit in this appeal, it is hereby dismissed - ITA No. 56/2013. - - - Dated:- 2-5-2017 - Hon'ble Shri Justice S.K. Gangele And Hon'ble Shri Justice Anurag Shrivastava, JJ. Shri Sanjay Lal, learned counsel for the appellant Shri Sumit Nema, learned counsel for the respondent JUDGMENT Per S.K. Gangele J Revenue has filed this appeal under Section 260-A of the Income Tax Act, 1961 against the order dated 30/04/2013 passed by Learned Income Tax Appellate Tribunal, Indore in I.T.A. (SS) 267/Ind/2012. 2. A search operation was conducted on 30/05/2008 at the residential premises of Shri Arun Sahlot at E-3/10, Arera Colony, Bhopal. Notice was issued to the assessee under Session 153A dated 07.01.2010 for filing the return of Income Tax for Assessment Years 2003-04 to 2008-09. In response to that the assessee filed income tax returns. 3. Besides the residential premises of assessee search was also conducted at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in ground of challenge of the revenue in this appeal is that whether ITAT is justified in law in deletion of addition of income under Section 2(22)(e) of the Income Tax Act ordered by the A.O. 8. The appellate tribunal recorded findings in this regard in para 85 on wards of the order. The Assessing Officer observed that RHPL had given loan to the assessee and the loan be added as addition under Section 2(22)(e) of the Income Tax Act treating it as deemed dividend because the shareholding of the assessee in three companies i.e. Raj Homes Pvt. Ltd., M/s. Raj Events and Entertainment Pvt. Ltd and M/s Minal Builders Ltd. Bhopal was more than 10%. The Commissioner Income Tax (Appeal) affirmed the above. The aforesaid contention has been considered by the Tribunal in paras 85 to 93 of the impugned order. The tribunal recorded following findings:- 85. With regard to the addition made u/s 2(22)(e), the Assessing Officer observed that the assessee is having substantial share holding in M/s. Raj Homes Private Limited (RHPL), wherein she held 30.76% shares during the previous year relevant to assessment year 2004-05 and 13.75% during the assessment year 2007-08 to 2009-10. By observin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bated, no addition is warranted while making assessment u/s 143A when no incriminating material was found during course of search. 89. This issue has been examined in the case of Arun Sahlot in para 28 to 31 hereinabove. Relevant observation were as under:- 90. As the facts and circumstances during the assessment year 2004-05 are the same, following the same reasoning, we restore the addition to the file of Assessing Officer for the assessment year 2004-05 with the similar direction as contained in the order of Arun Sahlot (supra). 91. In the assessment year 2007-08, the contention of the assessee was that the advance was given for the business purpose. He further submitted that ₹ 1 crore was given by RHPL directly to REEPL for allotment of shares, but the Assessing Officer has added the same in the hands of assessee. Relying on the decision in the Alpex Export (Del.I.T.A.T.) in I.T.A. No. 2858/Del/2012, order dated 28.08.2012, it was contended that share application money is outside the provisions of Section 2(22)(e), our attention was also invited to the decision of Hon'ble Delhi High Court in the case of Sunil Chopra in I.T.A. No. 106/Del/2011 order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 subclause (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) 1 a distribution made in accordance with subclause (c) or sub- clause (d) in so far as such distribution is attributable to the capitalised profits of the company representing bonus shares allotted to its equity shareholders after the 31st day of March, 1964 , 2 and before the 1st day of April, 1965 ];] (ii) any advance or loan made to a shareholder 3 or the said concern] by a company in the ordinary course of its business, where the lending of money is a substantial part of the business of the company; (iii) any dividend paid by a company which is set off by the company against the whole or any part of any sum previously paid by it and treated as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he loan and terms of loan even though these aspects are not relevant u/s 2(22)(e). Apart from this, the tribunal has only made remand to the Assessing Officer. It is well settled principle of law that if remand order has been passed, then there is no substantial question of law involved for determination because all the questions are open before the authority after remand. 13. In regard to second substantial question of law. Section 153-A of the Income Tax Act reads as under:- 153A. Assessment in case of search or requisition.- (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003, the Assessing Officer shall- (a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years referred to in clause (b), in the prescribed form and verified in the prescribed manner and setting forth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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