The ACIT, (OSD)Circle-8, Ahmedabad V. Zoetic Ayurvedics Pvt.Ltd., Ahmedabad

ITA 1677/AHD/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62991 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 31-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T SANKAR
• Assessee Lawyers: S N SOPARKAR SR ADV

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD , .'# $ ,%& % ' BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A. NO.1677/AHD/2012 ( # ) # ) # ) # ) / / / / ASSESSMENT YEAR : 2008-09 ) ACIT (OSD) CIRCLE3-8 AHMEDABAD # # # # / VS. M/S.ZOETIC AYURVEDICS PVT.LTD. NIRMOTI 21, SANJIV BAUG NEW SHARDA MANDIR ROAD PALDI, AHMEDABAD-380 007 * %& ./+, ./ PAN/GIR NO. : AAACA 1407 D ( *- / // / APPELLANT ) .. ( ./*- / RESPONDENT ) *- 0 % / APPELLANT BY : SHRI T.SANKAR, SR.D.R. ./*- 1 0 % / RESPONDENT BY : SHRI S.N.SOPARKAR, SR.ADV. #2 1 & / / / / DATE OF HEARING : 25/09/12 3') 1 & / DATE OF PRONOUNCEMENT : 28/09/12 %4 / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE REVENUE ARISING F ROM THE ORDER OF THE LD.CIT(A)-XIV, AHMEDABAD DATED 02/05/2012 PASSED FO R A.Y. 2008-09 AND THE SUBSTANTIVE GROUND IS REPRODUCED BELOW:- 1) THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XV I, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.25,14,760/- MADE BY THE ASSESSING OFFICER U/S .2(22)(E) OF THE ACT. ITA NO.1677/AHD/2012 ACIT VS. M/S.ZOETIC AYURVEDICS PVT.LTD. ASST.YEAR 2008-09 - 2 - 2. AT THE OUTSET, WE HAVE BEEN INFORMED THAT INVOCA TION OF THE PROVISIONS OF SECTION 2(22)(E) OF THE I.T.ACT BY TH E ASSESSING OFFICER VIDE AN ORDER U/S.143(3) DATED 28.12.2010 WAS INCOR RECT BECAUSE THE ASSESSEE IS ADMITTEDLY NOT A SHARE-HOLDER OF ZOETIC HEALTHCARE PVT.LTD. FROM WHOM THE ASSESSEE TAKEN A LOAN OF RS.25,14,760 /-. THE SAID FACTUAL POSITION IS ADMITTED BY THE ASSESSING OFFICER VIDE PARAGRAPH NO.3.1 AS UNDER:- 3.0. ADDITION U/S 2(22)(E) 3.1. DURING THE YEAR UNDER CONSIDERATION IT WAS NO TICED THAT THE ASSESSEE HAD TAKEN LOAN OF RS.2514760/- FROM ANOTHE R OF ITS GROUP CONCERNS NAMELY, ZOETIC HEALTHCARE PVT.LTD. THE SHA REHOLDING PATTERN OF BOTH THE COMPANIES WAS CALLED FOR DURING THE COU RSE OF ASSESSMENT PROCEEDINGS. THE SHAREHOLDING PATTERN OF THE COMPA NIES IS TABLED BELOW FOR READY REFERENCE. NAME (SHRI/SMT) ZOETIC AYURVEDICS PVT LTD. ZOETIC HEALTHCARE PVT LTD. NIKHILBHAI M MAJITHIA 15% 215% MUKHESHBHAI M MAJITHIA 15% 25% RASHMIBAI M MAJITHIA 25% 25% JAYABHAI M MAJITHIA 15% 25% BIJALBEN N MAJITHIA 5% HETALBEN M MAJITHIA 5% PRIYABEN J MAJITHIA 5% 3. EVEN THEN THE ASSESSING OFFICER HAD PROCEEDED TO INVOKE THE PROVISIONS OF SECTION 2(22)(E) AS PER THE FOLLOWING CONCLUSION- ITA NO.1677/AHD/2012 ACIT VS. M/S.ZOETIC AYURVEDICS PVT.LTD. ASST.YEAR 2008-09 - 3 - 3.15. AS THE ACCUMULATED PROFIT OF ZOETIC HEALTHCA RE PVT LTD IS MORE THAN THE LOAN GIVEN BY IT TO ZOETIC AYURVEDIC PVT LTD, THE ENTIRE AMOUNT OF LOAN ADVANCED OF RS.2514760/- IS C HARGEABLE TO TX U/S.2(22)(E) OF THE ACT. AS THE ASSESSEE HAS FU RNISHED INACCURATE PARTICULARS OF INCOME PENALTY PROCEEDINGS U/S.271(1 )(C) R.W.S. 274 IS ALSO BEING INITIATED SEPARATELY. 4. WHEN THE MATTER WAS CARRIED BEFORE THE LD.C IT(A), THE ISSUE WAS DECIDED IN ASSESSEES FAVOUR FOLLOWING THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS. BHAUMIK CO LOUR PVT.LTD. 118 ITD 01. NOW BEFORE US, LD.AR HAS PLACED A DECISION OF THE HON'BLE GUJARAT HIGH COURT IN TAX APPEAL NO.212 OF 2010 IN THE CASE OF CIT VS. DAISY PACKERS PVT.LTD. ORDER DATED 18/07/2012, WHER EIN A DECISION OF HON'BLE DELHI HIGH COURT PRONOUNCED IN THE CASE OF CIT VS. ANKITECH (P) LTD. 340 ITR 14 (DELHI) HAS BEEN CITED AND HEL D THAT THE ASSESSEE BEING NOT A SHAREHOLDER IN THE PVT.LTD. CO., THEREF ORE THE DEPOSIT RECEIVED WAS AN INTER-CORPORATE DEPOSIT AND NOT A DEEMED DIV IDEND . FURTHER, IN A GROUP CASE, A VIEW HAS BEEN TAKEN BY ITAT C BENCH AHMEDABAD IN ITA NO.26/AHD/2010 (FOR A.Y. 2008-09) TILTED AS IT O VS. M/S.ZEN INDUSTRIES LTD. ORDER DATED 30/03/2012, WHEREIN IT WAS HELD THAT THE RECEIVER OF THE LOAN SHOULD BE A REGISTERED AS WELL AS A BENEFICIAL OWNER OF THE SHARES OF THE COMPANY, WHO HAS PROVIDED LOAN IN ORDER TO ATTRACT THE PROVISIONS OF SECTION 2(22)(E) OF THE I.T.ACT. AS PER THE SHARE HOLDING PATTERN, AS REPRODUCED ABOVE, IT IS EVIDENT THAT THE ASSESSEE IN QUESTION IS NOT A DIRECT SHAREHOLDER OF M/S.ZOETIC HEALTHCARE PVT.LTD., THEREFORE THE ASSESSING OFFICER HAD DEFAULTED IN IN VOKING THE PROVISIONS ITA NO.1677/AHD/2012 ACIT VS. M/S.ZOETIC AYURVEDICS PVT.LTD. ASST.YEAR 2008-09 - 4 - OF SECTION 2(22)(E) OF THE I.T.ACT. THE VIEW TAKEN BY THE LD.CIT(A) IS HEREBY CONFIRMED. 5. IN THE RESULT, REVENUES APPEAL IS DISMISSED. SD/- SD/- ( .'# $ ) ( ) %& ( A. MOHAN ALANKAMONY ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIA L MEMBER AHMEDABAD; DATED 28/ 09 /2012 5..#, .#../ T.C. NAIR, SR. PS %4 1 .6 7%6) %4 1 .6 7%6) %4 1 .6 7%6) %4 1 .6 7%6)/ COPY OF THE ORDER FORWARDED TO : 1. *- / THE APPELLANT 2. ./*- / THE RESPONDENT 3. 8 / CONCERNED CIT 4. 8() / THE CIT(A)-XIV, AHMEDABAD 5. 6;< .# , , / DR, ITAT, AHMEDABAD 6. < =2 / GUARD FILE. %4# %4# %4# %4# / BY ORDER, /6 . //TRUE COPY// > >> >/ // / + + + + ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION ON 25.9.12 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 25.9.12 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 28.9.12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 28.9.12 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER