ITO, New Delhi V. Shri Sandeep Sabharwal, New Delhi

ITA 2336/DEL/2011

• Counselvise Citation: 233620114 RSA 2011
• Duration Of Justice: 4 year(s) 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 01-10-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 09-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Salary income; Opportunity of being heard; Peak credit; Deemed dividend
• Section: 132; 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SH. G. C. GUPTA, HONBLE VICE PRESIDENT AND SH. O.P.KANT , A CCOUNTANT M EMBER ITA NO. 2336 /DEL./ 2011 ASSTT. YEAR : 2007 - 08 ITO, WARD - 13(4), ROOM NO.219, C.R. BUILDING, NEW DELHI VS SANDEEP SABHARWAL, 59/6, PRABHAT ROAD, KAROL BAGH, NEW DELHI PAN:AAZPS6361B (APPELLANT) (RESPONDENT) APPELLANT BY : SH. SUJIT KUMAR, SR. DR RESPONDENT BY : SH. VED JAIN, CA DATE OF HEARING : 01.10.2015 DATE O F PRONOUNCEMENT : 14 .10.2015 ORDER PER O . P. KANT AM TH IS APPEAL OF THE R EVENUE IS DIRECTED AGAINST THE ORDER DATED 31.01.2011 OF LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - XVI, NEW DELHI FOR ASSESSMENT YEAR 2007 - 08 , RAISING FOLLOWING GROUNDS OF APPEAL: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.38,60,000/ - MADE AS DEEMED DIVIDEND U/S 2(22)(E) OF THE I. T. ACT. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS SIMPLY RELIED UPON THE SUBMISSIONS OF THE ASSESSEE THAT 'THE AMOUNT OF RS.20,40,000/ - WAS SECURITY TOWARDS RENT AND CLASSIFIED IN THE COMPANIES ACT UNDER THE HEAD 'ADVANCES RECOVERABLE IN CASH OR IN K IND', WITHOUT APPRECIATING THE FACTS OF THE CASE AND WITHOUT VERIFYING THE FACTS FROM THE BALANCE SHEET OF M/S OVERSEAS CONNEXION LTD. THAT AS PER SCHEDULE - G: UNDER THE HEAD 'LOANS & ADVANCES', 'ADVANCE RECOVERABLE IN CASH OR FOR KIND' HAS BEEN SHOWN AT RS .1,01,8767 - ONLY. ITA NO.2336/DEL./2011 2 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN ACCEPTING THE CONTENTION OF THE ASSESSEE THAT THE 'AMOUNT OF RS.20,40,0007 - WAS SECURITY TOWARDS RENT' WITHOUT APPRECIATING THE FACTS OF THE CASE AND WI THOUT VERIFYING FROM THE BALANCE - SHEET M/S OVERSEAS CONNEXION LTD. THAT AS PER SCHEDULE - G - UNDER THE HEAD 'LOANS & ADVANCES' THE AMOUNT OF RS.35,13,939.26 HAS BEEN SHOWN AS LOANS TO DIRECTORS. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN ACCEPTING THE CONTENTION OF THE ASSESSEE THAT RS.2,27,9977 - WAS ADVANCE AGAINST SALARY AND IN DELETING THE ADDITION MADE U/S '2(22)(E) WITHOUT' APPRECIATION THE FACTS AND MORE PARTICULARLY THIS AMOUNT WAS NOT INCLUDED IN THE AD DITION OF RS.38,60,000/ - U/S 2(22)(E) BUT THE ADDITION WAS MADE ONLY IN RESPECT OF AMOUNT RECEIVED BY THE ASSESSEE AS PER COPY OF LEDGER ACCOUNT I.E. 'SANDEEP SABHARWAL ADVANCE A/C' 2. THE FACTS IN BRIEF AS CULLED OUT FROM THE ORDER S OF LOWER AUTHORITIES ARE THAT D URING THE YEAR UNDER CONSIDERATION , THE ASSESSEE WAS ONE OF THE DIRECTORS OF M/S OVERSEAS CONEXION LTD. I (IN SHORT COMPANY ) AND WAS HAVING SUBSTANTIAL INVESTMENT IN SHARE CAPITAL OF THE COMPANY I.E. HAVING MORE THAN 10% SHARE CAPITAL. THE ASSESSEE FILED ITS RETURN OF INCOME ON 31.03.2009 DECLARING TOTAL INCOME OF RS.14,30,997/ - UNDER THE HEADS INCOME FROM SALARY AND INCOME FROM THE HOUSE PROPERTY ETC . THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S 143(2) OF THE INCOME - TAX ACT , 1961 (IN SHORT ACT) WAS ISSUED. IN THE COURSE OF SCRUTINY , THE LEARNED ASSESSING OFFICER OBSERVED FROM ONE OF THE LEDGER ACCOUNTS OF THE ASSESSEE NAMELY SANDEEP SABHARWAL ADVANCE ACCOUNT MAINTAINED IN THE BOOKS OF THE COMPANY THAT THE ASSESSEE RECEIVED LOAN S/ ADVANCE S OF RS.38,60,000/ - FROM THE COMPANY DURING THE YEAR AND SAID LOANS /ADVANCES RECEIVED BY HIM WERE SATISFYING ALL THE CONDITIONS LIABLE F OR HOLDING SUCH LOAN/ADVANCES AS DEEMED DIVIDEND . IN RESPONSE TO THE SHOW CAUSE NOTICE ISSUED TO THE ASSESSEE AS WHY THE LOAN S/ ADVANCE S RECEIVED BY THE ASSESSEE MIGHT BE TREATED AS DEEMED DIVIDEND U/S 2(22) (E) OF THE ACT, T HE ASSESSEE SUBMITTED THAT OUT OF THE PAYMENTS RECEIVED IN ADVANCE ACCOUNT , AN AMOUNT OF ITA NO.2336/DEL./2011 3 RS.20,40,000/ - WAS RECEIVED A S SECU RITY DEPOSIT AGAINST A PROPERTY LEASED OUT TO THE COMPANY . THE ASSESSEE ALSO SUBMITTED AN ADDENDUM TO THE LEASE AGREEMENT IN RESPECT OF THE PROPERTY LEASE D OUT TO THE COMPANY , SHOWING SUCH SECURITY DEPOSIT. ACCORDING TO THE LEARNED ASSESSING OFFICER, T HE ASSESSEE FURTHER EXPLAINED THAT OUT OF LOANS/ADVANCES AN AMOUNT OF RS.2,27,997/ - WAS RECEIVED BY HIM AS ADVANCE SALARY FROM THE COMPANY . THE AO DID NOT ACCEPT THE SUBMISSION OF THE ASSESSEE. FURTHER, T HE AO NOTICED THAT IN SCHEDULE G TO THE BALANCE SH EET OF THE COMPANY AS ON 31.03.2007 , IT WAS SPECIFICALLY MENTIONED THAT LOAN S OF RS.35,13,933/ - WAS GIVEN TO THE DIRECTOR S OF THE COMPANY AND THERE WAS NO MENTION OF SUCH SECURITY AMOUNT IN THE BALANCE SHEET OF THE COMPANY . THE LEARNED ASSESSING OFFICER ALSO DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE THAT AMOUNT OF RS. 2,27,997 WAS ADVANCE SALARY AS HE WAS OF THE VIEW THAT IF THE SALARY WAS RECEIVED IN ADVANCE , THEN IT WAS ALSO TAXABLE IN THE HANDS OF THE ASSESSEE, BUT , THE ASSESSEE HAD NOT OFFERED SUCH ALLEGED AMOUNT OF RS. 2,27,997 IN THE RETURN OF INCOME AND ALSO THE COMPANY HAD NOT DEDUCTED TAX AT SOURCE ON THE AMOUNT UNDER SECTION 192 OF THE ACT . T HE ASSESSING OFFICER OBSERVED THAT THE SO CALLED SECURITY DEPOSIT I N RESPECT OF THE PROPERTY AND ADVANCE SALARY WERE ONLY AFTERTHOUGHT OF THE ASSESSEE AND ACCORDINGLY, HE HELD THAT THE PAYMENTS RECEIVED BY THE ASSESSEE IN SANDEEP SABHARWAL ADVANCE A CCOUNT WERE IN THE NATURE OF LOANS / ADVANCES RECEIVED BY THE ASSESSEE AN D WERE LIABLE FOR DEEMED DIVIDEND UNDER SECTION 2(22) OF THE ACT . THE RELEVANT PARA OF THE ORDER OF THE AO IS REPRODUCED AS UNDER: - TO SUMMARIZE THE FACTS AND CIRCUMSTANCES OF THE CASE AGAINST THE CONDITIONS AS LAID DOWN IN SECTION 2(22) (E) AND THE CASE LAW ON THE SUBJECT, IT IS CLEAR THAT THE ABOVE OVERDRAWALS AND ADVANCES ARE HIT BY THE MISCHIEF OF SECTION 2(22)(E) ; - ITA NO.2336/DEL./2011 4 (I) THE ASSESSEE IS THE BENEFICIAL OWNER OF SHARES OF M/S OVERSEAS CONNEXTION LTD., HOLDING 18% OF EQUITY SHARES ISSUED BY THE ASSESSEE C OMPANY. (II) THE ABOVE COMPANY IS HAVING ACCUMULATED PROFITS AMOUNTING TO RS.1,14,55,867/ - AS ON 1 - 4 - 2006 AND RS.61,52,890/ - AS ON 31 - 3 - 2007 ( III ) LENDING OF MONEY IS NOT THE SUBSTANTIAL PART OF THE BUSINESS OF M/S OVERSEAS CONNEXTION LTD. (IV) IT IS WELL - SETTLED THAT IT IS NOT THE CLOSING BALANCE ALONE AT (LIE END OF (LIE YEAR THAT BECOMES TAXABLE AS ''DEEMED DIVIDED' IN THE HANDS OF THE RECIPIENT. EVERY OVERDRAWAL IS SEPARATELY HIT BY THE PROVISIONS OF SECTION 2(22(E). THEREFORE, IT IS THE TOTAL OF EVERY OVERDRAWAL IN THE ACCOUNT BY THE RECIPIENT OF ADVANCE/LOAN THAT BECOMES TAXABLE AS 'DEEMED DIVIDEND' UNDER SECTION 2(22 (E) , ALBEIT TO THE EXTENT OF THE AVAILABLE ACCUMULATED PROFITS IN THE COMPANY. 3 . AGGRIEVED , THE ASSESSEE FILED AN APPEAL BEFORE THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) . BEFORE THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS), T HE ASSESSEE SUBMITTED THAT AS PER THE PROVISION OF SECTION 2(22)(E) OF THE ACT ONLY LOAN/ ADVANCE IS LIABLE FOR DEEME D DIVIDEND AND NOT THE DEPOSIT. THE ASSESSEE ALSO CONTENDED THAT PART OF PAYMENTS RECEIVED BY THE ASSESSEE IN ADVANCE ACCOUNT , WERE RETURNED BACK BY HIM DURING THE SAME YEAR AND THEREFORE , T HE SAID PROVISION OF SECTION 2(22)(E) OF THE ACT CANNOT BE APPLIED ON THE WHOLE AMOUNT RECEIVED BY HIM DURING THE YEAR . FURTHER , IT WAS CONTENDED THAT THE ASSESSEE WAS INVOLVED IN REGULAR BUSINESS ACTIVITY OF THE COMPANY AND THEREFORE WAS DRAWING ADVANCES FOR CARRYING OUT SUCH ACTIVITIES . IT WAS FURTHER CONTENDED THAT IN THE YEAR UNDER CONSIDERATION THE ASSESSEE RECEIVED AN AMOUNT OF RS.20,40,000/ - AS SECURITY DEPOSIT IN INSTALLMENT AS PER CONVENIENCE OF THE SAID COMPANY. THE ASSESSEE FURTHER CONTENDED THAT THE SAID AMOUNT BEING SECURITY DEPOSIT CANNOT B E ASSESSED AS DEEMED DIVIDEND UNDER THE PROVISION OF SECTION 2(22)(E) OF THE ACT. FURTHER THE L EARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE, CONTENDED THAT THE ITA NO.2336/DEL./2011 5 AMOUNT OF RS.2,27,997/ - WAS AN ADVANCE AGAINST SALARY , WAS MISINTERPRET BY THE ASSESSING OF FICER AS ADVANCE SALARY . HE FURTHER CONTENDED THAT THIS AMOUNT WAS NOT BOOK ED AS INCOME AND THE SAID ADVANCE WAS REPAYABLE BY THE ASSESSEE TO THE COMPANY IN FUTURE. FURTHER , IT WAS CONTENDED THAT AT THE MOST WHAT THE ASSESSING OFFICER COULD DO WAS TO TAK E THE PEAK CREDIT IN THE BOOKS OF THE ASSESSEE , WHICH COME OUT TO RS.27,18,692/ - . FURTHER, CONTENDED THAT THE AMOUNT OF RS. 27,18,692/ - ALSO SHOULD NOT HAVE BEEN ADDED AS THE CREDIT BALANCE OF RS.4,52,003/ - APPEARING IN OTHER LEDGER ACCOUNT S OF THE ASSESSEE , SHOULD HAVE BEEN SET OFF FROM RS. 27,18,692/ - . THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) , ACCEPTED THE SUBMISSIONS OF THE ASSESSEE AND OBSER VED THAT AMOUNT APPEARING IN SANDEEP SABHARWAL ADVANCES A CCOUNT WERE CONSISTING OF SECURITY DEPOSIT AND ADVANCE AGAINST SALARY AND REMAINING AMOUNT IN SANDEEP SABHARWAL ADVANCES ACCOUNT COULD BE SET OFF AGAINST DUE AMOUNT LYING IN OTHER ACCOUNTS OF THE ASSESSEE. IN VIEW OF THE ABOVE FINDINGS , THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) DIRECTED THE LEARNED ASSESSING OFFICER TO DELETE THE ENTIRE ADDITION MADE AS DEEMED DIVIDEND U/S 2(22)(E) OF THE ACT. AGGRIEVED , THE R EVENUE IS BEFORE US. 4 . THE GROUNDS NOS.1 TO 4 OF THE APPEAL OF THE REVENUE ARE IN RESPECT OF DELETION OF ADDITION OF RS.38,60,000/ - FOR DEEMED DIVIDEND AND THEREFORE ALL THE FOUR GROUNDS ARE DISPOSED OFF TOGETHER 5 . AT THE TIME OF HEARING , THE L EARNED SENIOR DEPARTMENTAL REPRESENTATIVE (IN SHORT SR. D R ) RELIED ON THE ORDER OF THE LEARNED ASSESSING OFFICER AND FURTHER SUBMITTED THAT IN NORMAL CIRCUMSTANCES , SECURITY DEPOSIT AGAINST PROPERTY ARE NOT RECEIVED IN INSTALLMENTS. , FURTHER, HE ARGUED THAT AMOUNT OF RS.2,27,997/ - WAS IN NOT THE NATURE OF ADVANCE AGAINST SALARY OR ADVANCE SALARY AND BUT ONLY AN ADVANCE TO THE ASSESSEE BY THE COMPANY. FURTHER , HE ARGUED THAT HAD IT BEEN ITA NO.2336/DEL./2011 6 SALARY IN ADVANCE , THEN IT SHOULD HAVE BEEN REFLECTED IN THE RETURN OF THE ASSESSEE AND TDS SHOULD HAVE BE EN DEDUCTED. FURTHER , HE SUBMITTED THAT THE SAID AMOUNT OF SO CALLED ADVANCE AGAINST SALARY AND SECURITY DEPOSIT AGAINST PROPERTY WERE NOT APPEARING IN AUDITED ANNUAL STATEMENTS OF THE COMPANY, HENCE THESE EXPLANATION ARE ONLY AFTER THOUGHT OF THE ASSESSEE , AND THEREFORE , THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) WAS NOT JUSTIFIED IN DELETING THE ADDITION. ON THE OTHER HAND, THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE SUBMITTED A WRITTEN SYNOPSIS , RELEVANT PART OF WHICH IS REPRODUCED AS UNDER: 6. FIRSTLY, THE AO WHILE MAKING THE IMPUGNED ADDITION HAS AGGREGATED THE TOTAL DEBIT SIDE AND AFTER EXCLUDING THE OPENING CREDIT BALANCE OF RS.2,99,346.89 HAS MADE AN ADDITION OF RS.38,60,000/ - . IT IS EVIDENT FROM THE COPY OF SANDEEP SABHARWAL ADVANCE ACCOUNT (ENCLOSED AT PB 8), THAT THE ASSESSEE HAS ALSO PAID CERTAIN AMOUNTS TO THE SAID COMPANY, WHICH AGGREGATE TO RS.11,40,000/ - . THUS, THE ADVANCE, THOUGH IN THE NATURE OF A SECURITY DEPOSIT, WAS NOT MORE THAN RS.27,20,000/ - AT ANY TIME DURING THE YEAR. THUS, IT IS EVIDENT THAT THE AMOUNT COMPUTED BY THE AO IS FACTUALLY INCORRECT. 7. FURTHER, OUT OF THE NET AMOUNT OF RS.27,20,000/ - , AN AMOUNT OF RS.20,40,000/ - WAS RECEIVED BY THE ASSESSEE AS SECURITY DEPOSIT ON ACCOUNT OF RENT, WHICH HAS ALREADY BEEN EXPLAINED ABOVE TO BE IN THE NATURE OF A BUSINESS TRANSACTION. 8. THE AO HAS ALLEGED THAT THE AMOUNT HAS BEEN RECEIVED BY THE ASSESSEE FROM THE COMPANY THROUGHOUT THE YEAR, AND THE SUBMISSION OF THE ASSESSEE OF SECURITY DEPOSIT IS NOT TENABLE. HOWEVER, IT IS NOT OUT OF PLACE TO MENTION HERE THAT THE ASSESSEE WAS A DIRECT OR OF THE SAID COMPANY. IT WAS AN ARRANGEMENT BETWEEN HIM AND THE COMPANY TO DEPOSIT THE SAID SECURITY IN INSTALLMENTS, DEPENDING ON THE AVAILABILITY OF FUNDS WITH THE COMPANY. THEREFORE, THE AO HAS ERRED IN MAKING THE IMPUGNED ADDITION WITHOUT CONSIDERING THE CIRCUMSTANCES PREVAILING IN THE CASE OF THE ASSESSEE. 9. THE ASSESSEE HAS GIVEN THE PREMISES AT KAROL BAGH ON RENT TO M/S OVERSEAS CONNEXTION LTD. AND HAS RECEIVED AN AMOUNT OF RS.20,40,000/ - AS SECURITY DEPOSIT AGAINST THE SAME. THEREFORE, IT IS CLEA R THAT THE SECURITY DEPOSIT PAID BY THE COMPANY IS A ITA NO.2336/DEL./2011 7 TRANSACTION OF BUSINESS NATURE AND CANNOT BE CONSIDERED UNDER THE PURVIEW OF SECTION 2(22)(E) OF THE ACT. IT IS ALSO EVIDENT FROM THE COMPUTATION OF INCOME OF THE ASSESSEE (ENCLOSED AT PB 1), THAT THE AS SESSEE HAS GIVEN THE SAID PREMISES ON RENT TO M/S OVERSEAS CONNEXTION LTD. AND HAS RECEIVED RENT THEREON, WHICH HAS BEEN DULY DISCLOSED IN THE COMPUTATION. THE SAID COMPANY HAS ALSO DEDUCTED TDS WHILE MAKING THE PAYMENT TO THE ASSESSEE. IT IS A SETTLED LAW THAT THE PAYMENTS MADE AGAINST THE BUSINESS TRANSACTIONS ARE OUTSIDE THE PURVIEW OF SECTION 2(22)(E) OF THE ACT. THIS ISSUE HAS RECENTLY BEEN DECIDED BY THE CO - ORDINATE BENCH OF THIS HON'BLE TRIBUNAL IN THE CASE OF ACIT VS. SH. ASHOK KUMAR GARG IN ITA NO. 2917/DEL/2013 DATED 23.09.2015, WHEREIN THE HON'BLE TRIBUNAL HAS HELD AS UNDER: '5. WE HEARD THE RIVAL SUBMISSION AND PERUSED THE MATERIAL ON RECORD. ON PERUSAL OF THE COPY OF LEDGER ACCOUNT OF THE ASSESSEE WITH M/S A.K.J. INDUSTRIES LTD. EXTRACTED IN THE ASSESSMENT ORDER, IT IS CLEAR THAT THERE WERE CONTINUOUS TRANSACTIONS OF RECEIPT AND PAYMENT OF MONEY TO THE ASSESSEE BY THE SAID COMPANY. THERE ARE SOME DEBIT BALANCE AND AFTER SOME TIME IT WAS CONVERTED INTO CREDIT BALANCE AND FINALLY AT THE END OF ACCO UNTING YEAR, THERE WAS A DEBIT BALANCE OF RS. 53,28,853/ - . OUT OF THIS, THERE WERE ENTRY MADE ON 31 ST MARCH, 2009 TOWARDS TDS PAYABLE OF RS. 29,51,460/ - . THUS, THERE ARE MUTUAL TRANSACTIONS BETWEEN THE SAID COMPANY AND THE ASSESSEE THROUGHOUT THE YEAR. 5 T HEREFORE, IN OUR CONSIDERED OPINION, THIS ACCOUNT IS IN THE NATURE OF A CURRENT ACCOUNT, AND MOREOVER, THE SALARY PAYABLE IS ALSO CREDITED IN THIS ACCOUNT AND WHEREVER THERE ARE PAYMENTS IN EXCESS OF THE SALARY, IT WAS SUBMITTED THAT IT WAS AN ADVANCE SALA RY RECEIVED FROM THE COMPANY. THEREFORE, IN OUR CONSIDERED OPINION, THESE TRANSACTIONS ONE IN ORDINARY COURSE OF BUSINESS OF THE SAID COMPANY, CANNOT BE TREATED AS DEEMED DIVIDEND.' 10. THE ISSUE IS ALSO SQUARELY COVERED BY THE JUDGMENT OF COORDINATE DELH I BENCH OF ITAT IN THE CASE OF MR. PERCY PESHOTAN BATLIVALA VERSUS INCOME TAX OFFICER, [L.T.A .NO. - 4487/D EL/2010 DATED - 20 JULY 2012 ITAT DELHI] WHEREIN IT WAS HELD AS UNDER: 'IN THIS RESPECT, HE TOOK US TO PAGE 10 OF PAPER BOOK WHEREIN COPY OF ACCOUNT OF ASSESSEE IN THE BOOKS OF COMPANY WAS PLACED. IN THIS RESPECT, HE INVITED OUR ATTENTION TO THE FACT THAT ACCOUNT IS A RUNNING ACCOUNT AND THE DEBIT BALANCE OUTSTANDING AT SOME POINT OF TIME HAD CONVERTED INTO CREDIT BALANCE AND THUS IT IS A RUNNING ACCOUNT AND IS NOT IN THE ITA NO.2336/DEL./2011 8 NATURE OF LOAN. IN SUPPORT OF HIS PLEADINGS, THE LD. AR RELIED UPON THE CASE OF CIT VS RAJ KUMAR, WHEREIN HON'BLE DELHI HIGH COURT HAD HELD THAT THE WORD ADVANCE WHICH APPEARS IN THE COMPANY OF THE WORD LOAN COULD ONLY MEAN SUCH ADVANCE WHICH CARRIES WITH IT AN OBLIGATION OF REPAYMENT. TRADE ADVANCES WHICH ARE IN THE NATURE OF MONEY TRANSACTED TO GIVE EFFECT TO COMMERCIAL TRANSACTION WOULD NOT FALL WITHIN THE AMBIT OF SECTION 2(22)(E) OF THE ACT. RELIANCE WAS ALSO PLACED IN THE CASE OF SH YAMA CHARAN GUPTA VS. 377 ITR 511 WHEREIN THE HON'BLE ALLAHABAD HIGH COURT HAS HELD THAT ADVANCE TOWARDS SALARY WHICH WAS DUE TO THE PETITIONER AND WAS CREDITED TO HIS ACCOUNT EVERY MONTH COULD NOT BE TREATED AS DEEMED DIVIDEND. RELIANCE WAS ALSO PLACED ON THE JUDGEMENT OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. SUNIL SETHI WHEREIN IT WAS HELD THAT THE ADVANCE WHICH HAD BEEN GIVEN BY COMPANY TO ASSESSEE WHO WAS THE DIRECTOR IN THE SAID COMPANY WAS NEITHER A LOAN NOR WAS IT FOR INDIVIDUAL BENEFIT OF THE SAID ASSESSEE AND FURTHER HELD SUCH ADVANCE WAS IN THE NATURE OF IMPREST AND SAME COULD NOT BE TREATED AS DEEMED DIVIDEND UNDER THE PROVISIONS OF SECTION 2(22)(E)OF THE ACT. THE LD. DR ON THE OTHER HAND, RELIED UPON THE ORDER OF AO AND CIT(A). WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE THROUGH THE MATERIAL PLACED ON RECORD. FROM THE FACTS AND CIRCUMSTANCES OF THE CASE, WE HAVE OBSERVED THAT THE DEBIT BALANCE IN THE ACCOUNT OF ASSESSEE AT A GIVEN POINT OF TIME IS NOT IN THE NATURE OF LOAN OR ADVANCE. BUT, IT IS A RUNNING ACCOUNT WHEREIN THE ASSESSEE HAD TAKEN THE AMOUNT AS ADJUSTABLE AGAINST FUTURE SALARIES WHICH WERE BEING CREDITED TO HIS ACCOUNT MONTHLY. THEREFORE, FOLLOWING VARIOUS JUDICIAL PRONOUNCEMENTS AS RELIED UPON BY LD. AR, WE ARE OF THE VIEW THAT ADVANCE WAS NOT IN THE NATURE OF LOAN AND HENCE CANNOT BE TREATED AS DEEMED DIVIDEND U/S 2(22)(E) OF THE ACT. IN VIEW OF THE ABOVE, THE APPEAL FILED BY ASSESSEE IS ALLOWED.' 11. FURTHER RELIANCE IS PLACED ON THE FOLLOWING JUDGMENTS: ISHWAR CHAND JINDAL, NEW DELHI VERSUS ACIT, CENTRAL CIRCLE - 16. NEW DELHI [ITA NO. 2967/DEL/2012, ITA NO. 2002/DEL/2013 DATED - MAY 29,2015 ITAT DELHI] MR. PURUSHOTTAM DAS MIMANI VERSUS DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - V KOLKATA [IT (SS) A NOS. 60 TO 62/KOL/2011, IT (SS) A NOS. 73 TO 76/KOL/2011 DATED OCTOBER 17. 2014 ITAT KOLKATA] ITA NO.2336/DEL./2011 9 HIGH COURT OF ALLAHABAD COMMISSIONER OF INCOME - TAX, AGRA V. ATUL ENGINEERING UDYOG [2014] 51 TAXMANN.COM 569 (ALLAHABAD) SECTION 2(22) OF THE INCOME - TAX ACT, 1961 - DEEMED DIVIDEND (LOANS AND ADVANCES TO SHAREHOLDERS/COMMERCIAL TRANSACTION) - ASSESSMENT YEAR 2006 - 07 - ASSESSEE - FIRM ENTERED INTO AN AGREEMENT WITH ITS SISTER CONCERN TO SUPPLY ITS GENERATOR SETS AGAINST A FLOATING SECURITY DEPOSIT BY SAID CONCERN - IN TU RN, SISTER CONCERN WOULD SUPPLY ELECTRICITY TO ASSESSEE AT CONCESSIONAL RATE - ASSESSING OFFICER TREATED SECURITY DEPOSIT AS DEEMED DIVIDEND IN HANDS OF ASSESSEE - WHETHER SINCE DEPOSIT MADE BY SISTER CONCERN WAS A BUSINESS TRANSACTION ARISING IN NORMAL COU RSE OF BUSINESS BETWEEN TWO CONCERNS AND ASSESSEE - FIRM WAS NOT A SHAREHOLDER IN SAID COMPANY, SAID DEPOSIT COULD NOT BE TREATED AS DEEMED DIVIDEND - HELD, YES. IN THE ITAT CHENNAI BENCH 'D' ASSISTANT COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE - L{4) V . MADRAS MADURAI PROPERTIES (P.) LTD. [2011] 9 TAXMANN.COM 93 (CHENNAI - TRIB.) SECTION 2(22) OF THE INCOME - TAX ACT, 1961 - DEEMED DIVIDEND (LOANS/ADVANCES - COMMERCIAL TRANSACTION) - ASSESSMENT YEARS 2002 - 03, 2005 - 06 AND 2006 - 07 - WHETHER WHERE ASSESSEE - C OMPANY HAVING TAKEN A PROPERTY ON LEASE FROM ITS DIRECTORS, RELEASED SAME TO ANOTHER COMPANY IN WHICH THOSE DIRECTORS HAD SUBSTANTIAL INTEREST, SECURITY DEPOSITS RECEIVED BY ASSESSEE FROM SAID COMPANY IN TERMS OF RE - LEASE AGREEMENT BEING AN AMOUNT RECEIVED IN NORMAL COURSE OF ITS BUSINESS ACTIVITY, COULD NOT BE BROUGHT TO TAX AS DEEMED DIVIDEND UNDER SECTION 2(22) (E) - HELD, YES [PARA 16] 11. FURTHER, THE ASSESSEE HAS TAKEN AN AMOUNT OF RS.2,27,997/ - AS ADVANCE AGAINST SALARY. THE SAID ADVANCE AGAINST SAL ARY HAS BEEN MISINTERPRETED BY THE AO AS ADVANCE SALARY. THE SAID ADVANCE IS TO BE REPAID BY THE ASSESSEE TO THE COMPANY IN FUTURE. THUS, THE SAID TRANSACTION WAS ALSO IN THE NATURE OF BUSINESS AND NOT COVERED UNDER THE PROVISIONS OF SECTION 2(22)(E) OF TH E ACT, AND THE ADDITION MADE UNDER THE SAID PROVISIONS ID BAD IN LAW AND CONTRARY TO THE FACTS OF THE CASE, AND THUS, THE ORDER PASSED BY THE LD. CIT (APPEALS) SHOULD BE UPHELD. 12. FURTHER RELIANCE IS PLACED ON THE FOLLOWING JUDGMENTS: HIGH COURT OF DELHI COMMISSIONER OF INCOME - TAX V. AMBASSADOR TRAVELS (P.) LTD. [2008] 173 TAXMAN 407 (DELHI) SECTION 2(22) OF THE INCOME - TAX ACT, 1961 - ITA NO.2336/DEL./2011 10 DEEMED DIVIDEND - ASSESSMENT YEAR 1998 - 99 - ASSESSEE, ENGAGED IN BUSINESS OF TRAVEL AGE NCY, HAD ENTERED INTO CERTAIN BUSINESS TRANSACTIONS WITH TWO COMPANIES, NAMELY, 'H' LTD. AND 'A' LTD. - ASSESSING OFFICER TOOK A VIEW THAT BECAUSE OF SHAREHOLDING PATTERN, FINANCIAL TRANSACTIONS ENTERED INTO BETWEEN ASSESSEE AND SAID COMPANIES WOULD FALL I N CATEGORY OF 'DEEMED DIVIDEND' - COMMISSIONER (APPEALS) UPHELD ORDER OF ASSESSING OFFICER - ON FURTHER APPEAL, TRIBUNAL OPINED THAT BEING A TRAVEL AGENCY, ASSESSEE HAD REGULAR BUSINESS DEALINGS WITH ABOVE TWO CONCERNS DEALING WITH HOLIDAY RESORTS AND TOURI SM INDUSTRY AND, THUS, TRANSACTIONS - IN - QUESTION COULD NOT BE DESCRIBED AS ADVANCES OR LOANS FORMING DISTINCT CATEGORY OF FINANCIAL TRANSACTIONS - ACCORDINGLY, TRIBUNAL CONCLUDED THAT PROVISIONS OF SECTION 2(22)(E) WERE NOT AT ALL APPLICABLE - WHETHER SINCE ASSESSEE WAS INVOLVED IN BOOKING OF RESORTS FOR CUSTOMERS OF THESE COMPANIES AND HAD ENTERED INTO NORMAL BUSINESS TRANSACTIONS WITH COMPANIES AS A PART OF ITS DAY - TO - DAY BUSINESS ACTIVITIES, TRIBUNAL WAS RIGHT IN HOLDING THAT PROVISIONS OF SECTION 2(22)(E) WERE NOT APPLICABLE - HELD, YES. HIGH COURT OF DELHI COMMISSIONER OF INCOME - TAX V. ARVIND KUMAR JAIN [2012] 18 TAXMANN.COM 132 (DELHI) SECTION 2(22) OF THE INCOME - TAX ACT, 1961 - DEEMED DIVIDEND - WHETHER WHERE ASSESSEE HOLDING 50 PER CENT SHARES IN A C OMPANY, RECEIVED CERTAIN AMOUNT FROM SAID COMPANY ON ACCOUNT OF TRADING TRANSACTION BETWEEN PARTIES, AMOUNT SO RECEIVED COULD NOT BE ADDED TO ASSESSEE'S INCOME AS DEEMED DIVIDEND MERELY BECAUSE SAID AMOUNT HAD BEEN REFLECTED AS 'UNSECURED LOAN' IN ASSESSEE 'S BOOKS OF ACCOUNT - HELD, YES. 13. THE PROVISIONS OF SECTION 2(22)(E) OF THE ACT ARE APPLICABLE TO ONLY LOANS OR ADVANCES GIVEN BY THE COMPANY, AND IN CASE THE MONEY HAS BEEN ADVANCED BY THE COMPANY FOR SOME BUSINESS TRANSACTION, THE SAME CANNOT BE CONSI DERED FOR THE PURPOSE OF THE SAID SECTION. 14. IN VIEW OF THE ABOVE, THE LD. CIT (APPEALS) WAS RIGHT IN DELETING THE SAID ADDITION MADE BY THE AO, AND THE ORDER OF T HE LD. CIT (APPEALS) BE UPHELD. 6. HE FURTHER ARGUED THAT IT IS NORMAL PRACTICE IN THE BUSINESS THAT SOME ADVANCE IS BEING GIVEN AGAINST SALARY. FURTHER , HE ARGUED THAT THE ITA NO.2336/DEL./2011 11 ASSESSEE WAS ALSO MAINTAINING RUNNING ACCOUNT OF THE COMPANY AND THEREFORE, THE ADVANCE WERE DAY TO DAY REQUIREMENT OF THE COMPANY, AS SUCH THE AMOUNT APPEARING IN SAND EEP SABHARWAL ADVANCE ACCOUNT WAS NOT LIABLE FOR DEEMED DIVIDEND. 7 . WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE MATERIAL ON RECORD INCLUDING THE ORDER OF LOWER AUTHORITIES AND THE PAPER BOOK HAVING P AGE NO.1 TO 30 , FILED BY THE ASSESSEE. 8 . AS PER SECTION 2(22)(E) OF THE ACT , FOR ANY LOAN/ ADVANCE TO BE TREATED AS DEEMED DIVIDEND FOLLOWING CONDITIONS ARE REQUIRED TO BE FULFILLED AS UNDER : ( I ) THE RECIPIENT OF THE LOAN/ADVANCE SHOULD HAVE OWNED MORE THAN 10% OF THE SHARES OF THE VOTING POWER ( II ) THE COMPANY SHOULD BE THE COMPANY IN WHICH THE PUBLIC ARE NOT SUBSTANTIALLY INTERESTED AND ( III ) THE COMPANY SHOULD HAVE ACCUMULATED PROFIT AT THE TIME OF RECEIVING SUCH LOAN OR ADVANCE. 9 . IN THE CASE OF THE ASSESSEE , ALL THE ABOVE CONDITION S ARE FULFILLED BU T, T HE SOLE ISSUE ARISE FOR CONSIDERATION IN THE PRESENT APPEAL IS WHETHER THE PAYMENT MADE BY THE COMPANY TO THE ASSESSEE FALLS UNDER THE CATEGORY OF LOANS AND ADVANCES . IF ANSWER IS YES, THEN SUCH LOAN S OR ADVANCE S ARE LIABLE TO BE ASSESSED AS DEEMED DIVIDEN D IN THE HANDS OF THE ASSESSEE. 10 . ON PAGE 5 AND 6 OF THE ASSESSMENT ORDER, T HE LEARNED ASSESSING OFFICER , HAS POINTED OUT THAT THE ASSESSEE WAS HAVING FOUR LEDGER ACCOUNT S IN THE BOOKS OF COMPANY NAMELY SALARY ACCOUNT , RENT ACCOUNT , CURRENT ACCOUNT AND A DVANC E A CCOUNT . HE HAS HELD THAT IN SALARY A CCOUNT AND RENT A CCOUN T OPENING AND CREDIT BALANCES WERE CREDIT BALANCES AND THEREFORE, BEING NO ADVANCES NO DEEMED DIVIDEND WAS ASSESSABLE IN RESPECT THOSE TWO ACCOUNTS . FURTHER, THE DAY TO DAY ITA NO.2336/DEL./2011 12 BUSINE SS T RANSACTION S RELATED TO THE AFFAIRS OF COMPANY , WHICH WERE EXECUTED THOUGH THE ASSESS EE, WERE RECORDED IN THE C UR RENT A CCOUNT AND THEREFORE ANY PAYMENT OF LOAN AND ADVANCES IN THAT ACCOUNT WAS ALSO NOT HELD BY THE LEARNED ASSESSING OFFICER AS DEEMED DIVIDEND . T HE LEARNED ASSESSING OFFICER HAS HELD THAT THE TRANSACTION S IN ADVANCE A CCOUNT WERE ONLY LOAN S AND ADVANCES GIVEN BY THE COMPANY TO THE ASSESSEE, SO THE C ONTROVERSY BETWEEN THE ASSESSEE AND THE REVENUE IS IN RESPECT OF THE PAYMENT MA DE BY THE C OMPANY TO ASSESSEE AND RECORDED IN ADVANCE A CCOUNT . T HE LEARNED ASSESSING OFFICER HAS HELD THAT THOSE PAYMENTS AS LOAN AND ADVANCES WHEREAS, THE ASSESSEE IS CONTENDING THOSE PAYMENTS AS SECURITY DEPOSITS AND ADVANCE SALARY. 11 . FOR THE PURPOSE OF HAVING CLARITY OF THE TRANSACTIONS IN SANDEEP SABHARWAL ADVANCE ACCOUNT, WE WOULD LIKE TO REPRODUCE THE RELEVANT ADVANCE ACCOUNT AS UNDER: OVERSEAS CONNEXION LTD. 8/19, WEST EXTENSION AREA, SMILE CHAMBER, KAROL BAGH, DELHI - 110005 SANDEEP SABHARWAL ADVANCE A/C LEDGER ACCOUNT 1 - APR - 2006 TO 31 - MAR - 2007 DATE PARTICULARS VCH TYPE VCH NO. DEBIT CREDIT 1 - 4 - 2006 DR OPENING BALANCE 2 , 99 , 3 4 6.89 6 - 4 - 2006 CR. UT I BANK LTD CC A/C PAYMENT 44 90000 9 - 5 - 2006 CR ABN AMRO BANK A/C PAYMENT 230 2.99.346. 89 CR. ABN AMRO BANK A/C PAYMENT 232 150000 12 - 5 - 2006 CR. ABN AMRO BANK A/C PAYMENT 257 90000 18 - 5 - 2006 DR ABN AMRO BANK A/C RECEIPT 065 125000 31 - 5 - 2006 CR. UTI BANK LTD C/A PAYMENT 398 30000 - 20 - 6 - 2006 CR. UTI BANK LTD C/A PAYMENT 542 75000 CR. UTI BANK LTD C/A PAYMENT 554 150000 4 - 7 - 2006 CR. UTI BANK LTD C/A PAYMENT 621 120000 10 - 7 - 2003 CR. UT I BANK LTD C/A PAYMENT 668 250000 26 - 7 - 2006 DR UTI BANK LTD C/A RECEIPT 164 65000 ITA NO.2336/DEL./2011 13 1 - 8 - 2006 CR. UTI BANK LTD C/A PAYMENT 786 350000 2 - 8 - 2006 DR. UTI BANK LTD C/A RECEIPT 180 350000 8 - 8 - 2006 CR. UTI BANK LTD C/A PAYMENT 861 500000 11 - 8 - 2006 CR. UTI BANK LTD C/A PAYMENT 886 90000 2 - 9 - 2006 CR. UTI BANK LTD C/A PAYMENT 1035 30000 11 - 9 - 2006 CR. UTI BANK LTD C/A PAYMENT 1126 90000 18 - 9 - 2006 CR. UTI BANK LTD C/A PAYMENT 1171 35000 21 - 9 - 2006 CR. UTI BANK LTD C/A PAYMENT 1194 165000 14 - 2 - 2007 DR. ABN AMRO BANK A / C RECEIPT 498 600000 23 - 3 - 2007 CR. ABN AMRO BANK A / C PAYMENT 2645 1045000 26 - 3 - 2007 CR. ABN AMRO BANK A/C PAYMENT 2684 600000 4159346.89 1439346.89 DR. CLOSING BALANCE 2720000.00 4159346. 89 4159346.89 12 . IT IS CLEAR FROM ABOVE A CCOUNT THAT PAYMENTS MADE BY THE COMPANY ON DIFFERENT DATES I.E 6 - 4 - 206 ONWARDS HAVE BEEN TREATED AS SECURITY DEPOSITS BY THE ASSESSEE . DURING THE HEARING, THE LD. AR AFFIRMED TO THE BENCH THAT PROPERTY WAS RENTED TO THE COMPANY DURING THE YEAR, HOWEVER, THE ASSERTION OF THE FACT, IS NOT FOUND TO BE TRUE AS SEEN FROM THE RENT ACCOUNT OF THE ASSESSEE MAINTAINED BY THE COMPANY , WHERE SOME AMOUNT WAS DUE TO THE ASSESSEE IN OPENING OF THE YEAR. IN SUCH A SITUATION, WE CAN SAFELY DERIVE THAT THE PROPERTY WAS RENTED FOR A PERIOD AT LEAST BEYOND THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR. W E HAVE ALSO OBSERVED TH AT A NUMBER OF SMALL PAYMENTS WERE MADE BY THE COMPANY TO ASSESSEE AND SOME PAYMENTS HAVE BEEN RETURNED BACK BY THE ASSESSEE . FURTHER, WE FIND THAT FURNISHING OF SECURITY DEPOSIT AFTER A PERIOD MORE THAN A YEAR FROM TAKING THE PROPERTY ON RENT AND THAT TOO IN VARIOUS INSTALLMENTS , DOES NOT SEEM TO BE A REASONABLE AND PROBABLE FROM COMMON MANS POINT OF VIEW AND THE EXPLANATION OF THE ASSESSEE THAT IT WAS A SECURITY DEPOSIT, SEEMS TO BE AN AFTERTHOUGHT. WE HAVE ALSO OBSERVED THAT THE FACT THAT SECURITY DEPOSIT WAS NOT EVE N MENTIONED IN THE ORIGINAL RENT /LEASE AGREEMENT . ALL THESE FACTS LEAD US TO BELIEVE THAT THERE IS A STRONG PROBABILITY THAT PAYMENTS WERE NOT SECURITY DEPOSIT. FURTHER , IN CAUSE 9 TO THE NOTES TO ITA NO.2336/DEL./2011 14 ACCOUNT , WHICH IS PART OF FINANCIAL STATEMENT OF THE COMPANY AND PLACED AT PAGE 20A OF THE PAPER BOOK, IT IS MENTIONED AS UNDER: - 9. THE COMPANY HAS GIVEN LOANS AGGREGATING TO RS.35,13,939/ - TO TWO OF ITS DIRECTORS. HOWEVER, THE NECESSARY APPROVAL AS REQUIRED UNDER SECTION 295 OF THE INDIA N COMPANIES ACT, 1956 HAS NOT BEEN OBTAINED BY THE COMPANY. 13 . IT IS EVIDENT FROM THE ABOVE NOTES THAT THE ASSESSEE IS ALSO ONE OF THE DIRECTOR WHO HAS RECEIVED LOAN OUT OF RS.35,13,939/ - . FURTHER ,CLAUSE 3(A) OF THE ANNEXURE REFERRED TO IN PARAGRAPH 3 OF THE AUDIT REPORT FILED BY THE AUDITOR DEEPAK K. KEJREWAL & CO. , WHICH IS PLACED AT PAGE NO. 1 2 OF THE PAPER BOO K , IT IS ONE AGAIN MENTIONED THAT THE COMPANY HAS GRANTED INTEREST FREE LOAN AGGREGATING TO RS.35,13,939.26 TO TWO DIRECTORS COVERED IN RE GISTRAR MAINTAINING U/S 301 OF THE COMPANIES ACT , 1956. WE FIND THAT IN AUDITED STATEMENT OF THE COMPANY FOR THE FINANCIAL YEAR 2005 - 06, THERE IS NO MENTION OF ANY SECURITY DEPOSIT IN RESPECT OF THE PROPERTY , GIVEN BY THE COMPANY TO THE ASSESSEE , WHO IS DIRECTOR AND COVERED BY THE PERSONS IN RESPECT OF WHOM ENTR IES ARE TO BE MADE IN REGISTER MAINT AINED U/S 301 OF THE COMPANIES A CT. 14 . WE ALSO DONT AGREE WITH THE CONTENTION OF THE LEARNED AR THAT RS. 2,27,997 WAS ADVANCE AGAINST SALARY BECAUSE FIR STLY, THERE WAS NO SUCH ADVANCE GIVEN BY THE COMPANY , WHICH CAN BE CONFIRMED FROM THE FACT THAT NO SUCH ADVANCE WAS MENTIONED IN ANNUAL STATEMENT OF THE COMPANY, SECONDLY, THE AMOUNT WAS DERIVED MERELY AFTER SUBTRACTION OF RS. 20,40,000/ - CLAIMED BY THE A SSESSEE AS SECURITY DEPOSIT AND CREDIT BALANCE OF RS. 4,52,003 OUT OF RS. 27,18,692 CLAIMED AS PEAK OF SANDEEP SABHARWAL ADVANCE ACCOUNT. FURTHER, EVEN IF AMOUNT WAS ADVANCE AGAINST SALARY , TRANSACTION BETWEEN AN EMPLOYEE AND COMPANY CANNOT ACQUIRE CHA RACTER OF BUSINESS TRANSACTION . ITA NO.2336/DEL./2011 15 15 . IN THE CASE OF PERCY PESHOTAN BALTIVALA VS. ITO (SUPRA) RELIED BY THE LEARNED AR , THE PAYMENTS WERE IN RUNNING ACCOUNT, WHERE IN THE INSTANT CASE , THE RUNNING ACCOUNT IS SEPARATE AND PAYMENTS IN THAT ACCOUNTS HAVE NOT BEEN HELD AS DEEMED DIVIDEND, HENCE THE RATIO OF THE DECISION IS NOT APPLICABLE. IN OTHER DECISIONS CITED BY THE ASSESSEE ALSO THE BUSINESS TRANSACTIONS OR PAYMENTS IN CURRENT ACCOUNT ARE WERE INVOLVED, WHERE AS IN THE CASE IN HAND SUCH TRANSACTION H AVE ALREADY EXCLUDED FROM THE AMBIT OF DEEMED DIVIDEND, AND HENCE, THE RATIO OF THOSE DECISIONS DOES NOT APPLY. IN THE CASE OF ACIT VS MADURAI PROPERTIES (P) LTD , THE ADVANCE WERE IN THE NATURE OF SECURITY DEPOSIT , WHERE AS IN THE PRESENT CASE THE ADVANC ES HAVE NOT BEEN HELD AS SECURITY DEPOSIT , THEREFORE, THE RATIO OF THAT CASE IS ALSO NOT APPLICABLE IN THE FACTS OF THE PRESENT CASE. 16 . IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE AND DISCUSSION MADE ABOVE , WE ARE OF THE OPINION THAT THE PAYMENTS ADVANCED APPEARING IN THE SANDEEP SABHARWAL ADVANCE A CCOUNT BY THE COMPANY TO THE ASSESSEE ARE PURELY IN NATURE OF LOANS OR ADVANC E S TO THE ASSESSEE AND SAME ARE HELD TO BE IN THE NATURE OF DEEMED DIVIDEND UNDER SECTION 2(22) OF THE ACT. 17 . NOW WE HAVE TO DECIDE , WHETHER THE ENTIRE AMOUNT OF PAYMENT OF RS.38,60,000/ - GIVEN BY THE COMPANY TO THE ASSESSEE OR THE PEAK AMOUNT APPEARING IN SANDEEP SABHARWAL ADVANCE ACCOUNT, AS CLAIMED BY THE ASSESSEE BEFORE THE LEA RNED COMMISSIONER OF INCO ME - TAX( APPEALS) , IS LIABLE FOR DEEMED DIVIDEND . . THE PROVISION S OF SECTION ARE VERY MUCH CLEAR IN THIS RESPECT AND ACCORDING TO WHICH , ANY LOAN AND ADVANCE SUBJECT TO FULFILLMENT OF CONDITION S LAID DOWN IN SECTION , SHALL BE TREATED AS DEEMED DIVIDEND . SO, ONCE AN AMOUNT IS HELD AS DEEMED DIVIDEND , THEN INCREMENTAL LOAN AMOUNT THEREAFTER , WILL ONLY BE ADDED TO THE DEEMED DIVIDEND. ACCORDINGLY , WE HOLD THAT THE PEAK ITA NO.2336/DEL./2011 16 AMOUNT IN THE ADVANCE ACCOUNT DURING THE YEAR SHOULD BE TREATED AS DEEMED DIVIDEND , SU BJECT TO AVAILABILITY OF THE ACCUMULATED PROFIT AS ON THE DATE OF PEAK LOAN OR ADVANCES TO THE ASSESSEE. 18 . I N VIEW OF THE OUR FINDING ABOVE , WE DIRECT THE LEARNED ASSESSING OFFICER TO EXAMINE THE PEAK ADVANCE AMOUNT STATED BY THE ASSESSEE AND AVAILABILITY OF ACCUMULATED PROFIT AS ON THE DATE OF PEAK ADVANCE AND COMPUTE THE DEEMED DIVIDEND ACCORDINGLY. NEEDLESS TO MENTION THAT THE ASSESSEE SHALL BE GIVEN AN OPPORTUNITY OF BEING HEARD. IN THE RESULT THE GROUND NOS.1 TO 4 OF THE REVENUE ARE ALLO WED FOR STATISTICAL PURPOSES. 19 . GROUND NO.5 IS GENERAL IN NATURE SO IT DOES NOT REQUIRE ANY ADJUDICATION. 20 . I N THE RESULT THE APPEAL OF THE R EVENUE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 14 / 10 /2015. - SD/ - - SD/ - (G.C. GUPTA) ( O.P.KANT ) VICE PRESIDENT ACCOUNTANT MEMBER DATED: 14 / 10/2015 *AJAY* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR