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TMI Blog2018 (8) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... )(e) of the I T Act, 1961 considering the subsequent decision of Hon. Supreme Court in the case of Gopal and Sons (HUF) vs CIT Kolkata dated 07. 01. 2017 in Civil Appeal No. 12274 of 2016 wherein it was held that in the light of Explanation 3 to section 2(22)(e) of the Act, the amount received by the 'concern' is taxable in the hands of the 'concern' 3. Whether on the facts and circumstance of the case and in law, the ld. CIT(A) was right in holding that the Intercorporate Deposit given the the assessee is a deposit just by placing reliance on description given by the assessee as 'Intercorporate Deposit (ICD)' without ascertaining whether such Intercorporate deposit is infact a deposit or a loan. 4. Whether on the facts and circumstance of the case and in law, whilst it is true that it is the obligation of Assessing Officer to conduct proper scrutiny of material, given the fact that the Assessing Officer did not examine whether the Intercorporate Deposit (ICD) is a deposit of a loan, so as to attract the provisions of sec2(22)(e( of the Act, the obligation to conduct proper inquiry would shift to ld. CIT(A) in view of the decision of Hon. Delhi Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecific purpose. Assessee pointed out that the ICD was availed from Portescap for a specific purpose, i. e. to pay the purchase consideration for acquiring the Petrol Dispensing Pumps and Systems Division of Larsen & Toubro Ltd. Without prejudice to the above submissions, assessee also pointed out that even if the amount was to fall within the purview of Sec. 2(22)(e) of the Act, the same could not be taxed in its hands as it was not a shareholder or member of the lending company, i. e. Portescap. 5. The Assessing Officer considered the submissions. Firstly, with regard to the plea of ICD, the Assessing Officer held that every kind of lending would be covered by the expression 'loan' and 'advance' for the purposes of Sec. 2(22)(e) of the Act. On the alternate plea, the Assessing Officer inferred that the impugned sum was covered by the second category of payments referred to in Sec. 2(22)(e) of the Act, namely, the recipient of the amount being a concern in which the shareholder has a substantial interest. For the said reason, the Assessing Officer treated the receipt of Rs. 90 crores from Portescap as deemed dividend u/s 2(22)(e) of the Act. 6. Before the CIT(A), assessee reiter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed the order of CIT(A) by pointing out that in view of the judgment of the Hon'ble Supreme Court in the case of Gopal and Sons (HUF) vs CIT, Kolkata-XI, (2017) 77 taxmann. com 71 (SC), the amount received by the assessee-company is taxable in the hands of the concerned recipient also and not the registered shareholder only. 8. On the other hand, the learned representative for the assessee has defended the decision of the CIT(A) by pointing out that the judgment of the Hon'ble Supreme Court in the case of Gopal and Sons (HUF) (supra) is wholly inapplicable as it has been rendered under different fact-situation. In support of his proposition, reliance has been placed on the judgment of the Hon'ble Madras High Court in the case of PCIT vs M/s. Ennore Cargo Container Terminal P. Ltd. , T. C (A) Nos. 105 and 106 of 2017 dated 27. 03. 2017, which has been rendered under identical circumstances, a copy of which has been placed on record. 9. We have carefully considered the rival submissions. The appellant before us is a company which has received a sum of Rs. 90 crores from other concern, i. e. Portescap. The assessee-company as well as the other concern, i. e. Portescap, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same, in our view, is quite inapplicable to the facts of the present case. Firstly, the assessee before the Hon'ble Supreme Court was a HUF and the issue was as to whether the loans and advances received by the HUF could be treated as 'deemed dividend' within the meaning of Sec. 2(22)(e) of the Act. Notably, in the case before the Hon'ble Supreme Court, the payment was made by the company to the HUF and the shares in the company were held by the karta of the HUF. It is in this context that the Hon'ble Supreme Court upheld the addition in the hands of the HUF as factually the HUF was the beneficial shareholder. The fact-situation in the case before us stands on an entirely different footing inasmuch as the assessee-recipient of money is neither the registered nor the beneficial shareholder of the payer company, i. e. Portescap. Ostensibly, the common registered as well as beneficial shareholder of assessee-company and Portescap is Kollmorgen and not the assessee-company. Therefore, the decision of the Hon'ble Supreme Court in the case of Gopal and Sons (HUF) (supra) is inapplicable to the facts of the present case. In fact, the learned representative for the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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