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TMI Blog2016 (12) TMI 1846X X X X Extracts X X X X X X X X Extracts X X X X ..... ntially one of appreciation of facts. When the CIT(Appeals) as well as Tribunal concurrently held that looking to large number of adjustment entries in the accounts between two entities, the amounts were not in the nature of loan or deposit, but merely adjustments, application of section 2(22)(e) of the Act would not arise - Decided against revenue - ITA. No: 102/AHD/2012 - - - Dated:- 23-12-2016 - SHRI N.K. BILLAIYA AND SHRI MAHAVIR PRASAD, JJ. Appellant by : Shri Prasoon Kabra, Sr. D.R. Respondent by : Shri P. B. Parmar , A.R. ORDER N.K. BILLAIYA, J. 1. This appeal by the Revenue is preferred against the order of Ld. CIT(A)-VIII, Ahmedabad dated 20.10.2011 pertaining to A.Y. 2008-09. 2. The sole grievance of the revenue is that the ld. CIT(A) erred in deleting the addition of ₹ 45,00,000/- made u/s. 2(22)(e) of the Act. 3. Briefly stated the facts of the case are that the assessee is deriving income from salaries and capital gains and the return for the year under consideration was filed on 29.07.2008 at total income of ₹ 1,98,760/-. The return was selected for scrutiny under CASS and accordingly statutory notices were issued and ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant. It was the case of the assessing officer that Kadam Exports Pvt. Ltd. has provided loan amounting to ₹ 45,00,000/- to the Appellant and therefore, he added an amount of ₹ 45,00,000/- u/s 2(22)(e) of the Act, whereas during the course of appellate proceedings, it was the argument of A.R. of the Appellant that the Appellant was maintaining mutual, open and current accommodation adjustment account with the Company and on need basis the fund was transferred from the Appellant to Company and vice-versa and as it was not in the nature of loan and advances, the provisions of S.2(22)(e) of the Act cannot be invoked. During the course of appellate proceedings, the A.R. of the Appellant also placed on record CIT(A) orders in the case of M/s Schutz Dishman Biotech Pvt. Ltd. bearing Appeal Nos. 188/189/190/191/ITO.TDS(1)/10-11 and Dishman Pharmaceutical Ltd. bearing Appeal No.DCIT.(OSD)R.1/226/10-11, wherein under the identical facts of the case, both the CIT(A)s have held that when the assessee has maintained mutual, open and current accommodation adjustment account with the sister concerns, then the transactions entered into with the sister concerns cannot be treated as loa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the case of Surendra Kumar 65 taxmann.com 80, Hon ble High Court of Allahabad in the case of Krishna Gopal Maheshwari 44 taxmann.com 127, Hon ble High Court of Allahabad in the case of Shashi Pal Agarwal 54 taxmann.com 289. 10.Per contra the ld. counsel for the assessee reiterated what has been stated before the lower authorities and placed strong reliance on the decision of the Hon ble Jurisdictional High Court of Gujarat in the case of Schutz Dishman Bio-Tech Pvt. Ltd. in Tax Appeal No. 958 959 of 2015 and also relied upon the decision of the Co-ordinate Bench in the case of Dishaman Pharmaceuticals Chemicals Ltd. in ITA No. 2105 2125/Ahd/2012. 11.We have given a thoughtful consideration to the orders of the authorities below. We have also carefully gone through the decisions relied upon by the rival parties. There is no dispute that the assessee is holding substantial interest in Kadam Exports (P) Ltd., the relevant extract of the copy of the ledger account of the assessee in the books of accounts of M/s. Kadam Exports (P). Ltd. is as under:- Date Particulars Vch Type Vch No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25,00,000.00 15.03.2008 By HDFC Bank Receipt 621 3,00,000.00 31.03.2008 By HDFC Bank Ch. No. 941393 HDFC Bank Receipt 642 17,00,000.00 1,44,50,000.00 1,44,50,000.00 12. A perusal of the afore-stated copy of the account clearly shows that the assessee was having a current account with the said company. It can be seen that there are several debits and credits entries in the said account. The Hon ble Jurisdictional High Court in the case of Schutz Dishman BioTech Pvt. Ltd. (supra) was seized with the following question of law:- Whether on facts and in law the ITAT was right in cancelling the order passed u/s 201(1) and 201(A) of the Act, without appreciating that the amount advanced was in the nature of deemed dividend u/s 2(22)(e) of the Act? 13. And the relevant findings of the Hon ble High Court reads as under:- 4. It can thus be seen that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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