9911796707
TMI Blog2022 (1) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... that respect, the decision of the Hon‟ble Jurisdictional High Court is factually not applicable in the present facts and circumstances of the case of the assessee. Therefore, the additional ground raised in appeal by the assessee is dismissed. Even in grounds relating to merits also, as evident from the findings of the Ld. CIT(Appeals), the assessee has not at any stage neither before the Assessing Officer nor before the CIT(Appeals) has explained the commercial expediency of the transaction that as specifically brought out by the findings of the Ld. CIT(Appeals) of her order that assessee has not been able to demonstrate through any cogent or credible evidence that this transaction that he had with the M/s. Hextech Engineering Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Engineering Pvt. Ltd. ( Hextech) had given a loan to Zetex Engineers Pvt. Ltd. (Zetex) and the appellant is a common shareholder in both the companies with more than 90% shareholding. 3) The learned CIT(A) was not justified in taxing the above amount of ₹ 1,00,28,347/- as deemed dividend in the hands of the appellant as the funds given by the Hextech to Zetex were for the purposes of its business and not as a loan and therefore, the question of taxing any deemed dividend on account of these transactions simply did not arise u/s.2(22)(e). 4) Without prejudice, the learned CIT(A) erred in sustaining the addition of ₹ 1,00,28,347/- while it should have been restricted only to the peak amount arising out of the loans gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. and therefore, there was no reason to believe that the income on account of deemed dividend has escaped addition in the hands of assessee. The appellant craves to leave, add, amend, alter, modify and delete any or all the above grounds of appeal before or during the course of hearing. We would take up grounds of appeal memo as well as additional grounds raised and take up ITA No.73/PUN/2017 for the assessment year 2008-09 as the lead case for adjudication. ITA No.73/PUN/2017 A.Y.2008-09 4. The brief facts in this case are that the assessee is an individual and derives salary income as Director in Hextech Engineers India Pvt. Ltd., Nashik. The return of income was filed on 30.09.2008 declaring total income of ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ening an assessment on ground that a contingency may arise in future resulting in escapement of income whether that would be wholly impermissible and would amount to rewriting statutory provisions and it was held as yes and the issue answered in favour of the assessee. 6. The entire crux of the decision of the Hon‟ble Jurisdictional High Court in this case was that such exercise of reopening of assessment based on some hypothetical situation or contingency which may arise in future then in such case, this sort of exercise is not legally tenable and hence, it was held in favour of the assessee. However, when we peruse the reasons recorded for reopening of assessment in the present case of the assessee as recorded by the Assessing Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end except in a case where loan/advance made to a shareholder or the said concern by a company in the course of business of money lending. The company is not a money lending company so such advance cannot be considered under exception provided under section 2(22)(e). The argument of the ld. A.R that loans and advances should be treated as normal business transactions cannot come to its rescue, in absence of any documentary evidence to corroborate or substantiate its view. I fail to understand the Commercial transaction embedded in this transaction of drawls of loans and advances by the appellant from the company. It is true that the word commercial transaction is not defined in Income Tax Act. The definition of commercial transaction as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Ravi Pichaya is the ,common shareholder holding 99.95% and 97.10% shares respectively and at the end of the year M/s Zetex Engineers Pvt. Ltd. has a debit balance of ₹ 2,14,60,905/-with M/s.Hextech Engineering (I) Pvt. Ltd. The assessee has not been able to demonstrate through any cogent or credible evidence that this transaction that he had with the M/s. Hextech Engineering Pvt. Ltd. was commercial in nature. The AO has rightly taxed the same as deemed dividend to the extent of accumulated profit of ₹ 1,00,28,347/- in the hands of Shri Ravi Pichaya. 5.17. In the facts and circumstances of the case and keeping in view of the above judicial decision of the Hon ble Delhi High Court, I am of the opinion that the loan to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
