The DCIT, Circle-1(1)(2), Ahmedabad V. M/s. Corrtech Energy Ltd ( Formerly known as MJB Gas Turbine Services Ltd.), Ahmedabad

ITA 1970/AHD/2015

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6548 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2019
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 03-07-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: AFAQ SAIYAD
• Keywords: Capital asset; Bad and doubtful debts; Deemed dividend; Set aside
• Section: 2(22)(e); 37; 28

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ ITA NO.1970/AHD/2015 WITH CO NO.162/AHD/2015 / ASSTT. YEAR: 2011-12 DCIT, CIR.1(1)(2) AHMEDABAD. VS. M/S.CORRTECH ENERGY LTD. (MJB GAS TURBINE SERVICES LTD.) 22, DHARA CENTRE NR. VIJAY CHAR RASTA NAVRANGPURA AHMEDABAD 380 009. PAN : AAACI 8838 F / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI SUBHAS BAINS, CIT-DR ASSESSEE BY : SHRI AFAQ SAIYAD, AR ! / DATE OF HEARING : 20/02/2019 '#$ ! / DATE OF PRONOUNCEMENT: 30/04/2019 %& / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: REVENUE IS IN APPEAL AGAINST ORDER OF THE LD.CIT(A) -6, AHMEDABAD DATED 1.4.2015 PASSED FOR THE ASSTT.YEAR 2011-12. ON RECEIPT OF NOTICE ON REVENUES APPEAL, THE ASSES SEE HAS ALSO FILED CROSS OBJECTION BEARING NO.162/AHD/2015. BOTH THESE APPEALS ARE DISPOSED OF BY THIS COMMON ORDER FOR TH E SAKE OF CONVENIENCE. 2. FIRST WE TAKE REVENUES APPEAL: ITA NO.1970/AHD/2015 WITH CO 2 3. THE REVENUE HAS RAISED FOUR GROUNDS IN ITS APPEA L, WHICH READ AS UNDER: (1) THE ID. CIT(A) HAS ERRED IN LAW AND ON FACTS I N DIRECTING TO DELETE THE DISALLOWANCE IF THE AMOUNT OF BAD DEB TS WAS ADMITTED AS INCOME IN EARLIER YEAR WITHOUT APPRECIA TING THE FACT THAT THE ASSESSEE HAS NOT FURNISHED ANY DOCUME NT TO PROVE THAT THE AMOUNTS RELATED TO THE SAID PARTIES WERE SHOWN AS INCOME FOR TAXATION IN EARLIER YEARS. (2) THE ID. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.13,61,057/- MADE U/S 145A OF THE ACT WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE IS FOLLOWING EXCLUSIVE METHOD OF ACCOUNTING WITHOUT ANY CHANGE. (3) THE ID. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO VERIFY THE CONTENTION OF THE ASSESSEE THAT NO IN TEREST BEARING FUNDS WERE UTILIZED IN CONNECTION WITH THE CAPITAL WORK IN PROGRESS WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAS FAILED TO PROVE THE NEXUS OF UTILIZATI ON OF NON- INTEREST BEARING FUND. (4) THE ID. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE U/S 2(22)(E) OF RS.6,46,30,742/- WITHOUT APPRECIATING THE FACT THAT IN THE CASE OF CORRTECH INTERNATIONAL PVT. LTD., THE FACT OF THE CASE DIFFE RS FROM EARLIER YEAR AND IN THE CASE OF CONTROL PLUS OIL & GAS SOLUTIONS, THE COMPANY IS A SUBSIDIARY COMPANY OF T HE HOLDING COMPANY. 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MANUFACTURING GAS TURBINE BLADES, E NGINEERING SERVICES, CONTRACT OF GAS TURBINE AND TRADING OF SP ARE PARTS. IT HAS FILED ITS RETURN OF INCOME ON 30.9.2011 DECLARING I NCOME AT RS.8,05,20,440/-. THE ASSESSEE HAS SHOWN TOTAL TUR NOVER OF RS.47,02,24,803/- ON WHICH NET PROFIT OF RS.7,82,70 ,094/- HAS BEEN DECLARED. AFTER PROCESSING THE RETURN UNDER SE CTION 143(1), THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT AND NOTICE UNDER SECTION 143(2) WAS ISSUED AND SERVED U PON THE ITA NO.1970/AHD/2015 WITH CO 3 ASSESSEE. THE ASSESSEE FILED DETAILS CALLED FOR BY THE AO IN THE ASSESSMENT PROCEEDINGS. 5. DURING THE ASSESSMENT PROCEEDINGS, THE AO NOTICE D THAT ASSESSEE HAS DEBITED A SUM OF RS.37,27,034/- AS BAD DEBTS AND OTHER BALANCES AS WRITTEN OFF IN THE PROFIT & LOSS ACCOUNT, OUT OF WHICH, AN AMOUNT OF RS.10,14,810/- HAS BEEN DOUBTED BY THE AO. ACCORDING TO THE AO, THIS AMOUNT REPRESENTED ADVANC E AND DEPOSITS MADE BY THE ASSESSEE TO ITS CUSTOMERS VIZ. INDIAN PETROCHEMICALS CORPORATION LTD., RAJASTHAN RAJYA VI DYUT UTPADA, AND INDIAN OIL CORPORATION LTD., WHICH WERE NOT REF LECTED IN THE BOOKS, WHILE COMPUTING INCOME OF THE ASSESSEE IN TH E PREVIOUS YEAR. THE AO PROPOSED DISALLOWANCE OF THE SAME. T HE ASSESSEE EXPLAINED THAT THESE DEPOSITS REPRESENTED EARNEST M ONEY DEPOSITS AND WAS TO BE RETURNED TO THE ASSESSEE ON COMPLETIO N OF THE WORK CONTRACT. HOWEVER, SOME OF THE EMD WAS DEDUCTED AG AINST SALES BILLS BY THE CUSTOMERS DUE TO DELAY IN COMPLETION O F CONTRACT AS PER AGREEMENT. THESE WERE REFLECTED IN THE BOOKS. THE LD.AO DID NOT ACCEPT THIS EXPLANATION OF THE ASSESSEE AND DIS ALLOWED A SUM OF RS.10,14,810/-. ASSESSEE CONTESTED THIS ISSUE B EFORE THE LD.CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE DIRECTED THE AO TO VERIFY THE CLAIM OF THE ASSESSEE , AND IF THE SAME FOUND TO BE PART OF INCOME ASSESSED IN THE PRE VIOUS YEAR, THEN ALLOW THE CLAIM OF THE ASSESSEE. AGAINST THIS DIRECTION OF THE LD.CIT(A), REVENUE IS NOW IN APPEAL BEFORE THE TRIB UNAL, WHEREAS THE ASSESSEE BY WAY OF CROSS OBJECTION AGITATED ORD ER OF THE LD.CIT(A) IN NOT CONSIDERING ALTERNATIVE CONTENTION OF THE ASSESSEE THAT IF THE IMPUGNED SUM WAS NOT ALLOWABLE AS BAD D EBTS, THEN THE SAME WOULD BE ALLOWED AS TRADING LOSS UNDER SEC TION 28 OF THE ACT. ITA NO.1970/AHD/2015 WITH CO 4 6. BEFORE US, LD.DR SUPPORTED THE ORDER OF THE AO, W HILE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD.C IT(A) OUGHT TO HAVE CONSIDERED THE DETAILS FILED BY THE ASSESSEE A ND ON THE BASIS OF THE SAME, DISALLOWANCE OUGHT TO HAVE BEEN DELETE D. EVEN OTHERWISE ALSO, DEPOSITS MADE BY THE ASSESSEE WERE IN THE NATURE OF SECURITY DEPOSITS MADE DURING THE COURSE OF NORM AL BUSINESS AND WAS INTEGRAL PART OF THE BUSINESS CARRIED OUT B Y THE ASSESSEE, AND THEREFORE, IRRECOVERABLE DEPOSITS WRITTEN OFF S HOULD BE ALLOWED AS TRADING LOSS/BUSINESS LOSS UNDER SECTION 37 OF T HE ACT. 7. WE HAVE DULY CONSIDERED RIVAL SUBMISSIONS AND GO NE THROUGH THE RECORD CAREFULLY. ASSESSEE HAS DEBITED 37,27,0 34/- AS BAD DEBTS. OUT OF THE ABOVE, A SUM OF RS.10,14,810/- W AS NOT ALLOWED BY THE AO ON THE GROUND THAT THIS AMOUNT DI D NOT SUFFER INCOME-TAX IN EARLIER ASSESSMENT YEARS. IN OTHER WORDS, IT WAS NOT PART OF THE ASSESSEES INCOME. THE LD.CIT(A) R EMITTED THIS ISSUED TO THE FILE OF THE AO FOR VERIFICATION AND O BSERVATION THAT IF IT WAS FOUND TO BE PART OF ASSESSEES INCOME OF EAR LIER YEARS, THEN IT BE ALLOWED AS DEDUCTION. ON THE OTHER HAND, ALT ERNATIVE CONTENTION OF THE ASSESSEE IS THAT, IF IT IS NOT AL LOWED AS BAD DEBTS, THEN IT BE ALLOWED AS BUSINESS LOSS. THIS PLEADING HAS BEEN TAKEN IN THE CO. AFTER TAKING INTO CONSIDERATION BOTH TH E SUBMISSIONS OF THE ASSESSEE, WE DEEM IT APPROPRIATE TO MODIFY THE DIRECTION OF THE LD.CIT(A). WE UPHOLD THE REMITTANCE OF THE ISS UE OF BAD DEBTS TO THE FILE OF THE LD.CIT(A). THE LD.AO SHALL DECI DE THE ISSUE IN BOTH ANGLES. HE FIRST DECIDE WHETHER SUM OF RS.10, 14,810/- HAS SUFFERED TAX IN EARLIER YEARS, AND CAN BE ALLOWED A S BAD DEBTS AS CLAIMED BY THE ASSESSEE. IF NOT, HE SHALL VERIFY W HETHER IT CAN BE ALLOWED AS BUSINESS LOSS UNDER SECTION 37 OF THE IN COME TAX ACT. ITA NO.1970/AHD/2015 WITH CO 5 WITH THE ABOVE OBSERVATIONS, BOTH THE ISSUES BE TRE ATED AS ALLOWED FOR STATISTICAL PURPOSE. 8. SECOND GROUND OF APPEAL OF THE REVENUE RELATES T O DELETION OF ADDITION OF RS.13,61,057/- MADE UNDER SECTION 14 5A OF THE ACT. 9. SHORT FACTS IN THIS REGARD ARE THAT DURING THE A SSESSMENT PROCEEDINGS, THE AO NOTICED THAT THE ASSESSEE HAS A DOPTED EXCLUSIVE METHOD OF ACCOUNTING WHILE DETERMINING VA LUE OF CLOSING STOCK OF RS.14,83,82,926/- AS ON 31.3.2011. IN OTH ER WORDS, THE ASSESSEE HAS NOT INCLUDED PROPORTIONATE AMOUNT OF V AT/EXCISE DUTY IN THE VALUE OF THE CLOSING AS STIPULATED IN S ECTION 145A OF THE ACT. ASSESSEE EXPLAINED THAT ASSESSEE-COMPANY WAS FOLLOWING EXCLUSIVE METHOD OF ACCOUNTING CONSISTENTLY FOR VAL UATION OF PURCHASE AND SALES OF GOODS AND INVENTORY WHILE DET ERMINING ITS INCOME. WHETHER IT IS INCLUSIVE OR EXCLUSIVE METHO D, ULTIMATELY, ENTIRE EXERCISE WOULD BE REVENUE NEUTRAL BECAUSE HI GHER PROFITS RESULTING FROM HIGHER VALUATION OF CLOSING STOCK DU E TO INCLUSION OF TAXES ETC. WILL BE ADJUSTED BY THE HIGHER VALUE IN THE OPENING STOCK, PURCHASES AND SALES OF NEXT YEAR. THEREFOR E, THE ASSESSEE SUBMITTED THAT NO CHANGE IN THE CALCULATION OF CLOS ING STOCK ON ACCOUNT OF CENVAT WOULD BE MADE. THIS EXPLANATION OF THE ASSESSEE WAS NOT ACCEPTED BY THE AO, AND ADDED PROP ORTIONATE VALUE OF VAT TO THE VALUE OF CLOSING STOCK BY INVOK ING PROVISIONS OF SECTION 145A OF THE ACT. ASSESSEE WENT IN APPEAL BE FORE THE LD.FIRST APPELLATE AUTHORITY, WHO AFTER DETAILED DI SCUSSION IN THE LIGHT OF VARIOUS JUDICIAL PRONOUNCEMENT ON THIS ISS UE, ALLOWED THE CLAIM OF THE ASSESSEE. NOW, REVENUE IS BEFORE THE TRIBUNAL ITA NO.1970/AHD/2015 WITH CO 6 10. THE LD.DR RELIED UPON THE ORDER OF THE AO, WHIL E THE LD.COUNSEL FOR THE ASSESSEE SUPPORTED THE ORDER OF THE LD.CIT(A). HE FURTHER SUBMITTED THAT NO SUCH ADDITION WAS MADE UNDER SECTION 145A OF THE ACT IN EARLIER ASSESSMENT YEARS 2009-10. THE LD.CIT(A) HAS ALLOWED THE CLAIM OF THE ASSESSEE AFT ER TAKING INTO CONSIDERATION LEGAL POSITION AND THE DECISION OF I TAT, AHMEDABAD IN THE CASE OF ASIAN TUBES LTD., IN ITA NO.1358/AHD /2009, THEREFORE, ORDER OF THE LD.CIT(A) ON THIS ISSUE BE NOT DISTURBED. 11. WE HAVE CONSIDERED SUBMISSIONS OF BOTH THE PART IES AND ALSO GONE THROUGH THE RECORD CAREFULLY. IT IS NOT DISPU TED BY THE REVENUE THAT THE ASSESSEE HAS BEEN FOLLOWING CONSIS TENTLY THE METHOD OF VALUATION OF CLOSING STOCK I.E. EXCLUSIVE METHOD OF ACCOUNTING FOR VALUATION OF PURCHASE AND SALE OF GO ODS AND INVENTORY. ASSESSEE IS MAINTAINING SEPARATE BOOKS F OR CENVAT. WE FIND THAT THE POSITION OF LAW ON THIS ISSUE IS C LEAR. CENVAT WILL FORM PART OF CLOSING STOCK ONLY WHEN THE SAME IS DE BITED TO THE PROFIT AND LOSS ACCOUNT I.E. AT THE TIME OF ACTUAL PAYMENT. ADDITION AND/OR DEDUCTION OF CENVAT TO THE VALUE OF CLOSING STOCK HAS NO IMPACT ON FINANCIAL POSITION OF THE ASSESSEE , AS THE SAME IS REVENUE NEUTRAL. THE LD.CIT(A) HAS ACCEPTED THE ME THOD ADOPTED BY THE ASSESSEE IN THE LIGHT OF VARIOUS JUDGMENTS. THEREFORE, WE DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF T HE REVENUE. IT IS DISMISSED. 12. IN GROUND NO.3 OF THE REVENUES APPEAL AND GROU ND NO.4 OF CO OF THE ASSESSEE, COMMON ISSUE IS RAISED, WHICH R ELATE TO ADDITION OF RS.14,56,331/- ON ACCOUNT OF INTEREST P AID ON CAPITAL WORK-IN-PROGRESS. ITA NO.1970/AHD/2015 WITH CO 7 13. IN THE ASSESSMENT PROCEEDINGS, THE AO NOTICED T HAT THE ASSESSEE HAS SHOWN CAPITAL WORK-IN-PROGRESS AT RS.7 65,48,558/- AFTER DEBITING INTEREST OF RS.87,40,956/- PAID AGAI NST PURCHASE OF CAPITAL GOODS. THE LD.AO SOUGHT DETAILS OF INTERES T EXPENSES FROM THE ASSESSEE. ASSESSEE FURNISHED A DETAILED BREAK- UP OF INTEREST PAID TO VARIOUS BANKS. THE LD.AO DISALLOWED PROPOR TIONATE INTEREST EXPENSES OF RS.14,56,331/- CONSIDERING THE SAME AS RELATABLE TO THE BORROWED FUNDS UTILIZED FOR ACQUISITION OF CAPI TAL ASSETS, WHICH WERE NOT PUT TO USE TILL 31.3.2011. THE LD.CIT(A) ALLOWED THE APPEAL OF THE ASSESSEE ON THIS CLAIM OF DEDUCTION, AND DIRECTED THE AO TO VERIFY THE CONTENTION OF THE ASSESSEE THAT NO INTEREST BEARING FUNDS WERE UTILIZED IN CONNECTION WITH THE CAPITAL WORK-IN- PROGRESS, AND IF THE SAME FOUND TO BE CORRECT, THEN CLAIM OF THE ASSESSEE TO BE ALLOWED. REVENUE BEING DISSATISFIED WITH THIS DIRECTION OF THE LD.FIRST APPELLATE AUTHORITY IS IN APPEAL BEFORE THE TRIBUNAL. ASSESSEE IS ALSO AGGRIEVED IN GIVING SUCH DIRECTION AND NOT ALLOWING CLAIM OF THE ASSESSEE STRAIGHT AWAY ON THE BASIS OF SUBMISSIONS MADE BEFORE THE LD.CIT(A). 14. BEFORE US, LD.DR RELIED UPON THE ORDER OF THE AO . THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT INVESTME NT IN CAPITAL WORK-IN-PROGRESS HAS BEEN MADE OUT OF SUFFICIENT IN TEREST FREE FUNDS AVAILABLE WITH THE ASSESSEE AND INTERNAL ACCR UALS, AND NO BORROWED FUNDS WERE UTILIZED, AND THEREFORE, DISALL OWANCE OF INTEREST PAID IS UNJUSTIFIED. 15. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND GONE T HROUGH THE RECORD CAREFULLY. WE FIND THAT THE LD.CIT(A) HAS N OTICED THAT ASSESSEE COMPANY WAS HAVING INTEREST FREE FUNDS TO THE TUNE OF RS.24.31 CRORES AND AT THE END OF FINANCIAL YEAR, T HE SAME WAS ITA NO.1970/AHD/2015 WITH CO 8 UPTO THE TUNE OF RS.29.11. OVER AND ABOVE, THE ASS ESSEE COMPANY WAS ALSO HAVING INTEREST FREE FUNDS IN THE FORM OF SUNDRY CREDITORS AND OPERATIONAL INCOME TO THE TUNE OF RS. 46.76 CRORES. ASSESSEE SUBMITTED BEFORE THE LD.CIT(A) MOST OF THE PAYMENTS FOR CAPITAL ASSETS SHOWN UNDER THE HEAD CAPITAL WORK-IN -PROGRESS HAS BEEN MADE FROM CURRENT ACCOUNT OR CC ACCOUNT, AND T HEREFORE, INTERNAL ACCRUAL WAS UTILIZED FOR FINANCING CAPITAL WORKING-IN- PROGRESS, AND THEREFORE, THERE IS NO QUESTION OF CA PITALIZING ANY INTEREST EXPENDITURE. IN VIEW OF THE ABOVE, WE ARE OF THE VIEW THAT THE LD.CIT(A) HAS RIGHTLY SET ASIDE THE ISSUE TO THE FILE OF THE AO FOR VERIFICATION OF THIS CLAIM, WITH DIRECTION T O ALLOW THE SAME IF HE FINDS THE SAME TO BE CORRECT. THIS DIRECTION OF THE LD.CIT(A) CANNOT SAID TO BE INCORRECT OR UNJUST. NO PREJUDIC E WILL BE CAUSED TO THE BOTH PARTIES, IF FURTHER VERIFICATION OF THE FACTS IS MADE TO MEET ENDS OF JUSTICE. THEREFORE, WE ARE NOT INCLIN ED TO INTERFERE IN THE DIRECTION OF THE LD.CIT(A) ON THIS ISSUE, THE S AME IS CONFIRMED, AND THIS GROUND IN BOTH THE APPEAL OF THE REVENUE A ND THE CO OF THE ASSESSEE IS REJECTED. 16. IN GROUND NO.4, REVENUE IS AGGRIEVED BY THE ACT ION OF THE LD.CIT(A) IN DELETING ADDITION MADE BY THE AO UNDER SECTION 2(22)(3) OF RS.6,46,30,742/-. 17. BRIEF FACT OF THE MATTER IS THAT DURING THE ASSE SSMENT PROCEEDINGS, THE LD.AO NOTICED THAT THE ASSESSEE HA S RECEIVED AN AMOUNT OF RS.6,09,98,428/- FROM CONTROL PLUS OIL & GAS SOLUTIONS P.LTD., AND ALSO RECEIVED AN AMOUNT OF RS.36,32,314 /- FROM CORRECT INTERNATIONAL PVT.LTD. DURING THE YEAR. AS SESSEE WAS SHOW CAUSED AS TO WHY ADVANCE RECEIVED FROM TWO COMPANIE S SHOULD NOT BE CONSIDERED AS A DEEMED DIVIDEND. ASSESSEE S UBMITTED THAT ITA NO.1970/AHD/2015 WITH CO 9 THESE ADVANCES WERE TEMPORARY BUSINESS LOAN WHICH W ERE PAID BY THEM IN THE YEAR UNDER CONSIDERATION AND THERE WAS NO OUTSTANDING BALANCE LYING IN ITS BOOKS. IN SUPPORT OF THIS CONTENTION, ASSESSEE HAS FILED LEDGER ACCOUNT OF TH ESE TWO COMPANIES. IT WAS FURTHER SUBMITTED THAT THE ASSES SEE COMPANY WAS NOT SHAREHOLDER OF THE LENDER COMPANIES, AND TH EREFORE PROVISIONS OF SECTION 2(22)(E) WOULD NOT BE APPLICA BLE. THE LD.AO DID NOT ACCEPT THIS EXPLANATION OF THE ASSESSEE, AN D HELD THAT ASSESSEE COMPANY IS SUBSIDIARY OF THE LENDING COMPA NY I.E. ASSESSEE COMPANY IS A SUBSIDIARY OF CORRECT INTERNA TIONAL LTD., AND CONTROL PLUS OIL AND GAS SOLUTION PVT. LTD. IS ALSO A SUBSIDIARY OF THE SAID CORRTECH INTERNATIONAL LTD. WITHIN THE MEANING OF SECTION 2(22)(E). ACCORDINGLY, THE LD.AO MADE ADDI TION OF RS.6,46,30,742/- TO THE TOTAL INCOME OF THE ASSESSE E. THIS ACTION OF THE LD.AO WAS CHALLENGED BEFORE THE LD.FIRST APP ELLATE AUTHORITY. THE LD.CIT(A) WHILE ALLOWING THE CLAIM OF THE ASSES SEE OBSERVED THAT SIMILAR CLAIM OF THE ASSESSEE IN THE ASSTT.YEA R 2009-10 WAS ALLOWED, WHICH WAS CONFIRMED UPTO THE LEVEL OF ITAT IN ITA NO.1650/AHD/2012 ORDER DATED 31.10.2013. 18. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE RECORD CAREFULLY. WE FIND THAT THE LD.CIT(A) HAS RECORDED A FINDING THAT THE ASSESSEE IS NOT A SHAREHOLDER OF THE LENDER COM PANY WITHIN THE MEANING OF SECTION 2(22)(E) OF THE ACT, AND THE REFORE, THERE IS NO QUESTION OF TREATING THE LOAN TO BE DEEMED DIVID END IN THIS CASE. THE LD.CIT(A) HAS BASED HIS FINDING ON THE G ROUND THAT SIMILAR ADDITION WAS DELETED IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2009-10, WHICH WAS UPHELD BY THE TR IBUNAL ALSO. SINCE THERE IS NO DISPARITY ON FACTS IN THE PRESENT ASSESSMENT YEAR ALSO, APPLICABILITY OF SECTION 2(22)(E) DOES NOT AR ISE. THERE IS ITA NO.1970/AHD/2015 WITH CO 10 NOTHING BROUGHT BEFORE US BY THE REVENUE TO DEVIATE FROM THE VIEW TAKEN BY THE LD.CIT(A) ON THIS ISSUE. THEREFO RE, WE ARE UNABLE TO FIND ANY MERIT IN THE GROUND OF APPEAL OF REVENUE. IT IS REJECTED. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. 19. NOW ONLY ISSUE LEFT IN THE CO FOR ADJUDICATION IS, WITH REGARD TO ADDITION OF RS.1,65,297/- MADE BY THE AO ON ACCO UNT OF DISALLOWANCE OF LATE PAYMENT OF EMPLOYEES CONTRIBUT ION TO PF. 20. AT THE OUTSET, THE LD.COUNSEL FOR THE ASSESSEE CONCEDED THAT THIS ISSUE IS TO DECIDED AGAINST THE ASSESSEE IN VI EW OF HONBLE JURISDICTIONAL HIGH COURT DECISION IN THE CASE OF C IT VS. GUJARAT STATE ROAD TRANSPORT CORPORATION LTD., 41 TAXMANN.C OM 100 (GUJ). IN VIEW OF THIS SUBMISSION OF THE ASSESSEE , WE REJECT THIS GROUND OF CO. 21. IN THE RESULT, APPEAL OF THE REVENUE AND CO OF THE ASSESSEE BOTH ARE PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 30 TH APRIL, 2019. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 30/04/2019