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TMI Blog2017 (10) TMI 934X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion to invoke revisional jurisdiction u/s. 263 of the Act, we note that he has not discussed as to whether sec. 2(22)(e) of the Act is attracted and the transaction can be characterized or be termed as a loan/advance. We note that the Ld. Pr. CIT did not even care to discuss and pass a speaking order, has simply set aside the original assessment order, which action of Pr. CIT cannot be countenanced. Therefore, we are inclined to allow the appeal of the assessee and quash the impugned order of the Ld. Pr. CIT. - Decided in favour of assessee. - I.T.A No. 1010/Kol/2016 - - - Dated:- 18-10-2017 - Shri A. T. Varkey, JM And Dr. A. L. Saini, AM For the Appellant : Shri S. K. Tulsiyan, Advocate For the Respondent : Shri Goulean Hangshing, CIT, DR ORDER Per Shri A.T.Varkey, JM This is an appeal filed by the assessee against the Revision order of Pr. CIT, Kolkata- 2 dated 15.03.2016 for AY 2012-13 passed u/s. 263 of the Income-tax Act, 1961(hereinafter referred to as the Act ). 2. We have heard rival submissions and gone through the facts and circumstances of the case. The main thrust of the argument of the Ld. Counsel for the assessee is that while exercisin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 1.09 cr. to M/s. Subhchintak Vancom Pvt. Ltd.; and on 25.12.2011 gave M/s. Subhchintak Vancom Pvt. Ltd. ₹ 5 lacs; and ₹ 70 lacs; and on 15.03.2012 the assessee had given ₹ 60 lacs to M/s. Subhchintak Vancom Pvt. Ltd. In the assessment year under consideration, the assessee had given to M/s. Subhchintak Vancom Pvt. Ltd. ₹ 2,44,25,000/- whereas it owed to M/s. Subhchintak Vancom Pvt. Ltd. ₹ 1,35,85,000/-. From the ledger, the assessee had only debited ₹ 1,35,85,000/- whereas M/s. Subhchintak Vancom Pvt. Ltd. has drawn ₹ 1,08,40,000/- in excess from the assessee. From the aforesaid facts stated above, according to ld counsel it is a clear case wherein there is a shifting of balance is apparent. On such factual matrix the assessee s argument is that such kind of transaction cannot be termed as loan/advance to attract the provisions of section 2(22)(e) of the Act. The Hon ble Supreme Court in the case of Kesari Chand Jaisukh Lal Vs. Shillong Banking Corporation Ltd. 1965 AIR 1711 has held as under: To be mutual there must be transactions on each side creating independent obligations on the other and not merely transactions which create ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L. The loan account is different from a current account with a shareholder and the transactions between the Assessee and BAPL are in the nature of current account and provisions of Sec.2(22)(e) of the Act will not be applicable to the case of the Assessee. We, therefore, concur with the decision of the CIT(A) and dismiss the appeal of the Revenue. 5. Similarly, the Coordinate Bench of this Tribunal in Mr. Purushottam Das Vs. DCIT and vice versa in IT(SS)A Nos. 60 to 62 73-76/Kol/2011 dated 17.10.2014 has held as under: 5. .. It is pertinent to note here that when dividends are declared by a company, it is solely the shareholders who benefit from the transaction. No benefits accrue to the company by way of dividend distribution. Thus, section 2(22)(e) of the Act covers only such situations, where the shareholder alone benefits from the loan transaction, because if the company also benefits from the said transaction, it will take the character of a commercial transaction and hence will not qualify to be dividend. In the case of the assessee, by giving and taking financial assistance from each other. both the assessee and the company were benefited and such transactions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed above, it is clear that both the parties are beneficiary of the transaction being current account transaction i.e. shifting of balances, therefore, as held by the Hon ble Supreme Court in Keshri Chand Jaisukh Lal, supra and Hon ble Calcutta High Court in Pradip Kumar Malhotra, supra, we note that sec. 2(22)(e) of the Act is not attracted in the transaction with M/s. Subhchintak Vancom Pvt. Ltd. It should be remembered that for exercising revisional jurisdictional the Pr. CIT should find that the order of the AO is not only erroneous but also it should be prejudicial to the interest of revenue. It should be kept in mind that the assessee cannot dictate the AO how to pass the order or to ask how to investigate or what question to ask or what should be enquired into. We also note that a search warrant was executed in the case of the assessee on 15.06.2011 and search happened in the assessment year under consideration and, therefore, scrutiny u/s. 143(3) of the Act was framed. All the records including all the books of account were before the AO. Appraisal report prepared by the Investigation Wing was also before the AO. In the original assessment order itself in para 4 the AO notes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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