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TMI Blog2018 (1) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... such facts have been available with the Assessing Officer there would be no question of concealment of any particulars of any fact per se. - Decided against revenue - Tax Appeal No. 873 of 2017 With Tax Appeal No. 873 of 2017 - - - Dated:- 23-1-2018 - MS. HARSHA DEVANI AND MR. A.S. SUPEHIA, JJ. For The Appellant : Mrs Kalpanak Raval, Advocate COMMON ORAL ORDER ( PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. The appellant revenue in these appeals under section 260A of the Income Tax Act, 1961 (hereinafter referred to as the Act ) has challenged the common order dated 5.4.2017 made by the Income Tax Appellate Tribunal, Ahmedabad D Bench, Ahmedabad (hereinafter referred to as the Tribunal ) in IT(SS)A No.17/A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espectively. During the years under consideration, the assessee was running the business of exports of sarees and dress materials under its proprietary concern Vishal Overseas . During the course of assessment proceedings, it was observed from the books of Vishal Overseas, (Proprietor Shri Dipesh Lalchand Shah) that during the assessment years 2008-09 and 2009-10, it had received loan amount of ₹ 8,25,0000/- and ₹ 69,55,000/- respectively, from M/s. Vishal Fashion Private Limited, a private limited company (closely held) in which the assessee was having 28% share holding and all other conditions stipulated in section 2(22)(e) of the Act were satisfied, thus attracting the provisions of deemed dividend in the hands of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t failed. 3. Mrs. Kalpana Raval, learned senior standing counsel for the appellant, assailed the impugned order on the grounds set out in the memorandum of appeal as well as on the reasoning adopted in the penalty order. 4. A perusal of the penalty order under section 271(1)(c) of the Act reveals that the penalty proceedings for furnishing inaccurate particulars of income were initiated at the time of passing the assessment order. The Commissioner (Appeals), after appreciating the material on record, has recorded the following findings:- ( i) The facts/details of the transactions of loan taken by the appellant from M/s. Vishal Fashions P. Ltd. in both the years were fully furnished/disclosed by the appellant before the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the hands of the recipient assessee in certain circumstances as specified therein. In view of section 2(22)(e) of the Act, loans/advances amount under consideration artificially partake the character of dividend and brought to tax as deemed dividend. Needless to say, the aforesaid provision of section 2(22)(e) has brought a deeming and unnatural concept of treating the returnable loans/advances as taxable income in the hands of borrower in departure with the operation of the normal provisions. Admittedly, the relevant facts concerning the issue were available to the Assessing Officer. Thus, there is no concealment of any particulars of any fact per se. The Assessee has simultaneously claimed that the aforesaid advances have been received ..... X X X X Extracts X X X X X X X X Extracts X X X X
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