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TMI Blog2009 (9) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Tarulata Shyam Vs. CIT (82 ITR 485)(Cal) and K.M.S. Lakshmana Aiyar Vs. Addl. ITO (40 ITR 469) (Mad) to state that repayment of advance/loan taken subsequently would be immaterial and that the liability under section 2(22)(e) attaches the movement the loan is given to the shareholder. Therefore, without considering the transaction on the debt side which would constitute repayments, the additional advances received during the year by the assessee company from its subsidiary are to be taxed in the year under consideration. The ld. CIT(A) has noted the submission made in the remand report and the Tribunal has also overlooked the ground taken in para 2.4 of the grounds of appeal. Therefore, this constitutes mistake apparent from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on as 'deemed dividend' u/s 2(22)(e) of the Act for the reasons given in paragraphs 4.4 and 4.5 of his order as under: 4.4 The pre-requisite for considering a transaction as deemed dividend under sec. 2(22)(e) are as under: a. There must be a payment by way of advance or loan. b. The payment should be from a company in which the public are not substantially interested. c. The payment should be to a share holder. d. The share holder should be the beneficial owner of the equity shares holding not less than 10 percent of the voting power. e. The payment by way of loan or advanced should not have been made in the ordinary course of business. f. Money lending should not be a substantial part of the assessee's bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances discussed in the above paragraphs, the closing credit balance of ₹ 4,16,12,082 cannot besaid to represent a 'payment', made by the assessee-company to its subsidiary during the previous year relevant to AY2004-05, within the meaning of section 2(22)(e) of the Act. And on this ground alone the impugned addition of ₹ 4,16,12,082, made in AY 2004-05, becomes unsustainable. We hold accordingly. 8. We like to make it clear that we have not gone into the correctness or otherwise of the other reasons, given by the CIT(A) in his order, for deleting the above addition. On perusal of the above noted conclusion, we find that each and every aspect of the matter has been considered and moreover, the ld. DR could not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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