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TMI Blog2019 (2) TMI 1443X X X X Extracts X X X X X X X X Extracts X X X X ..... law which were admitted in the present appeal are quoted below for ready reference: "1.Whether in the facts and circumstances of the case, the Tribunal was right in holding that the provisions of sec.2(22)(e) treating a loan or advance as a deemed dividend does not apply if the loan is given as part of a contractual obligation? 2. Whether on the facts and circumstances of the case, the Tribunal was right in interpreting the section on the basis of intention of the legislature, when the words of the section are clear and unambiguous? 3. Whether on the facts and circumstances of the cae, the Tribunal was right in looking at the transaction between the two companies in other years to arrive at the conclusion that the loan granted in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a share holder or beneficial owners of shares, (iv) with more than 10% voting power, (v) for his individual benefit. 8. In the present case, the credit arises by virtue of a contractual obligation and a business transaction and has been settled the very next year. There is no individual benefit derived by the Assessee. Moreover, the credit does not satisfy the definition of #advance# or #loan#. The fiction thus fails on several counts. The Revenue relies upon the judgment of the Supreme Court in the case of Miss P.Sarada vs. Commissioner of Income Tax (229 ITR 444) and the decision of the Calcutta High Court in M.D.Jindal vs. Commissioner of Income Tax (164 ITR 28). 9. In the first case, the assessee had made withdrawals from out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in the case of Gopal and Sons (HUF) V. Commissioner of Income Tax ((2017) 145 DRT 289)(SC) wherein the Honourable Supreme Court in the facts obtaining before it held that the payments made to HUF defined as a 'concern' in Explanation to Section 3(a) of the Act were rightly treated as deemed dividend in the hands of the assessee invoking the provisions of Section 2(22)(e) of the Act. 6. We find the facts of the said case before the Honourable Supreme Court are distinguishable, as the present case before us is that of a juristic person, namely, a Private Limited Company. Since the assessment of the husband, who is similarly situated as the respondent/assessee, wife in the present case before us, has already been decided ..... X X X X Extracts X X X X X X X X Extracts X X X X
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