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TMI Blog2024 (10) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... pital and considering the need of funds required by the hospital for day-to-day business, sometimes the funds are made available by the assessee to the hospital and sometimes hospital provides funds to the assessee for carrying out certain transactions on behalf of the hospital. Further, we find that these transactions have been consistently carried out for past many years and have been accepted by the Revenue Authorities. We are of the considered view that Section 2(22)(e) of the Act cannot be invoked on the given set of transactions in the instant appeal. Decided in favour of assessee. - Dr. Manish Borad, Accountant Member And Shri Sonjoy Sarma, Judicial Member For the Assessee : Shri Devesh Poddar, AR For the Department : Shri P.P. Bar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l is regarding the addition of deemed dividend u/s. 2(22)(e) of the Act amounting to Rs. 2,99,87,804/- confirmed by ld. CIT (A). 04. Briefly stated facts are that assessee is a doctor by profession and runs his own hospital namely, Genesis Hospital, Ruby, Kolkata. Return of income filed declaring total income of Rs. 1,29,38,170/-. The case of the assessee selected for scrutiny and valid notices u/s 143(2) and 142(1) of the Act were issued which were duly complied with. Ld. AO framed the assessment u/s. 143(3) determining total assessed income of Rs. 4,29,25,970/- after making an addition of Rs. 2,99,87,804/- u/s. 2(22)(e) of the Act. According to Ld. AO, the addition has been made on the ground that the assessee had taken loan of Rs. 3,33,6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... high value flats through via-media i.e. through a share holder of a company other than acquiring such property on their own. 6.7 It is also not explained as to why company has not fulfilled the terms of agreement by not realizing the balance amount and not insisting repay of the loan amount with interest. 6.8 In the assessment order the AO rejected the submission of the appellant stating on the issue that possession of the flat is still pending and the company has not paid entire money to the assessee and in the assessee's account entire amount received is shown as unsecured loan. AO observed that appellant has not furnished any explanation as to why provisions of section 2(22)(e) will not be applied, specially when the amount is shown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishable. In view of fact and circumstance of the case, the addition made by the AO in the assessment order is upheld. Therefore, the appeal of the appellant is dismissed. 05. Aggrieved assessee is now in appeal before this Tribunal. The ld. Counsel for the assessee referring by the written submissions and ledger account stated that there are continuous transactions of payment and receipt between the assessee and the company namely M/s. East India Health Care Pvt. Ltd. and these transactions are for commercial expediency and are not in the nature of loans and advances. Reliance placed on the judgement of Hon'ble Kolkata High Court in case of Pradip Kumar Malhotra V. CIT (2011) 15 taxmann.com 66/203 Taxman 10/338 ITR 538 (Cal) and the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserve that assessee who is 62.22% shareholder in M/s. East India Health Care Pvt. Ltd. The accumulated profit of the company is Rs. 2,99,87,804/-. The ld. Ao observing that there is a debit balance in the name of assessee in the books of M/s. East India Health Care Pvt. Ltd. (EIHCPL), came to a conclusion that the assessee has taken unsecured loan from EIHCPL. The ld. CIT (A) affirmed the finding of the ld. AO and his finding is abstracted (supra). 09. We note that the assessee is a doctor and runs hospital under the name EIHCPL. Copies of ledger account of EIHCPL in the books of the assessee for A.Y. 2013-14 and 2015-16 has been placed before us. On Perusal of the ledger account, it reveals that there are continuous transactions of outflo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count of being a person who is the beneficial owner of shares (not being shares entitled to a fixed rate of dividend whether with or without a right to participate in profits) holding not less than ten per cent of the voting power; but if such loan or advance is given to such shareholder as a consequence of any further consideration which is beneficial to the company received from such a shareholder, in such case, such advance or loan cannot be said to a deemed dividend within the meaning of the Act. Thus, for gratuitous loan or advance given by a company to those classes of shareholders would come within the purview of s. 2(22) but not to the cases where the loan or advance is given in return to an advantage conferred upon the company by s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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