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TMI Blog2023 (5) TMI 1178X X X X Extracts X X X X X X X X Extracts X X X X ..... e issue. The issue is not fully settled by Hon ble Supreme Court that too when later judgment of the Hon ble Supreme Court has referred the issue to the Larger Bench. Thus the Ld. CIT(A) is not correct in taking a decision with that of the previous judgment of the Hon ble Supreme Court in the case of Madhur Housing And Development Company [ 2017 (10) TMI 1279 - SUPREME COURT ] Therefore we hereby set aside the matter back to the file of the Ld. CIT(A) who is to decide the issue - Ground raised by the Revenue are hereby allowed for statistical purposes. Addition - delayed deposit of service tax - as per CIT-A service tax collected by the assessee was deposited before the due date of filing of the return - HELD THAT:- This amount was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in the circumstances of the case and in law, the Id. CIT(A) has erred in deleting the addition of Rs.9,23,804/- made u/s 43B of the Act by the Assessing Officer. 4. On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in ignoring the fact that the assessee is following mercantile method of accounting and hence any liability/income is to be ascertained and debited/credited in the relevant previous year. 3. In spite of service of notice to the respondent-assessee, none appeared on behalf of the assessee. No authorization is filed on behalf of the assessee. So with the assistance of the ld.DR, the above appeal is being disposed of. 4. Regarding ground no.1 2, viz. deemed dividend made under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No. 3961 of 2013 dated 5th October, 2017 in the case of CIT V/s Madhur Housing Development Company. The Hon'ble Gujarat High court in the case of CIT VS Daisy Packers (P.) Ltd has held that Deposit received by assessee from a company cannot be considered as deemed dividend when assessee is not a shareholder of said company . The Hon'ble Bombay High court in the case of ACIT V/s Britto Amusement (P) Ltd. [2014] 49 taxmann.com 256 has held that Loans or advances received by assessee-company from other company could not be treated as deemed dividend when assessee was not a shareholder of that company. It is observed that though Hon'ble Supreme Court in the case of National Travel Services V/s CIT 89 taxmann.com 332 has o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s deleted, as addition is required to be made in the case of Sanjay Gupta who is holding substantial shares in both the concerns. The finding given in preceding para would equally apply to these facts and based upon the same, income of the Assessee as well as Sanjay Gupta would be determined. On this basis, both the grounds of appeal are partly allowed. 5. The above addition has been made by the ld.AO on the ground that Shri Sanjay Gupta was holding substantial shareholding in the assessee company as well as in Neesa Leisure Ltd. The ld.CIT(A) after considering judicial precedents in the case of CIT Vs. Ankitech P.Ltd., 340 ITR 14 which was upheld by the Hon ble Supreme Court in Civil Appeal No.3961 of 2013 dated 5.10.2017 in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Madhur Housing And Development Company which requires reconsideration. Therefore the Ld. CIT(A) is not correct in deleting the addition made u/s. 2(22)(e) of the Act. 7. We have perused the materials available on record and found that the Ld. CIT(A) is not correct in deleting the addition in the hands of the assessee, observing that the addition is to be made in the hands of the Director of the Company who is common shareholder of both companies. Especially when the Hon ble Supreme Court has doubted the decision of the Delhi High Court in the case of Ankitech Pvt. Ltd. and referred it to the Larger Bench of the Hon ble Supreme Court to re-look into the entire issue. We are of the considered opinion, the issue is not fully settled ..... X X X X Extracts X X X X X X X X Extracts X X X X
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