ITO 6(3)3, MUMBAI V. MEANS INFRASTRUCTURE (I) P. LTD, MUMBAI

ITA 3059/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92265 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-04-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 03-02-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 22-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LOVE KUMAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI . , , BEFORE SHRI D. MANMOHAN , VP AND SHRI SANJAY ARORA , AM ./ I.T.A. NO. 3059/ MUM/2013 ( / ASSESSMENT YEAR: 2008 - 09 ) INCOME TAX OFFICER - 6(3) - 3, ROOM NO. 524, AAYAKAR BHAVAN, 5 TH FLOOR, M. K. MARG, MUMBAI - 400 020 / VS. MEANS INFRASTRUCTURE (INDIA) P. LTD. 311, GOKUL, 80/A, BARODA STREET, CARNAC BUNDER, MUMBAI - 4 00 009 ./ ./ PAN/GIR NO. AAACM 9740 J ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI LOVE KUMAR / RESPONDENT BY : NONE / DATE OF HEARING : 03.02.2015 / DATE OF PRONOUNCEMENT : 10 .0 4 .2015 / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN A PPEAL BY THE REVENU E DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 12, MUMBAI (CIT(A) FOR SHORT) DATED 24 .01.2013 , ALLOWING THE A SSESSEES APPEAL CONTESTING ITS ASSESSMENT U/S.143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR ASSESSMENT YEAR (A.Y.) 2008 - 09 VIDE ORDER DATED 14.12.2010. 2. NONE APPEARED FOR AND ON BEHALF OF THE ASSESSEE - RESPONDEN T WHEN THE APPEAL WAS CALLED OUT FOR HEARING, NOR ANY ADJOURNMENT APPLICATION STANDS RECEIVED. THE NOTICE FOR THE HEARING WAS CONVEYED THROUGH RPAD, AND WHICH HAS BEEN RECEIVED BACK UNSERVED , WITH THE POSTAL REMARK S NOT K NOWN, EVEN AS THE SAME BEARS THE CORRECT ADDRESS, I.E., AS STATED BY THE ASSESSEE IN FORM NO.36 AS WELL AS IN THE IMPUGNED ORDER . EVEN NO POWER OF ATTORNEY OR LETTER OF AUTHORITY STANDS FILED. UNDER THE CIRCUMSTANCES, IT WAS ONLY 2 ITA NO. 3059/MUM/2013 (A.Y. 2008 - 09) ITO VS. MEANS INFRASTRUCTURE (INDIA) P. LTD. CONSIDERED FIT AND PROPER TO PROCEED WITH THE MATTER, DECI DING THE APPEAL AFTER HEARING THE PARTY BEFORE US. 3. THE APPEAL RAISES A SINGLE ISSUE, I.E., THE MAINTAINABILITY OR OTHERWISE IN LAW OF THE DEEMING OF THE TWO LOANS , AGGREGATING TO RS.58,34,274/ - , RECEIVED BY THE ASSESSEE - COMPANY DURING THE RELEVANT Y EAR, AS DIVIDEND U/S. 2(22)(E) OF THE ACT. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE , A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 , WAS OBSERVED DURING THE COURSE OF ASSESSMENT PROCEEDINGS BY THE ASSESSING OFFICER (A.O.) TO HAVE RECEIVE D LOANS FROM TWO PRIVATE LIMITED COMPANIES, AS UNDER, WHICH HAD THE SAME SHAREHOLDING AS THE ASSESSEE - COMPANY , I.E., 50% OF THE VOTING POWER VEST ING IN TWO INDIVIDUALS, NAMELY, PADMAKASH B. SHUKLA AND RAJENDRA KUMAR J. JAIN : FROM LOAN AMT (RS.) M/S. SEA BIRD SURVEYS PVT. LTD. RS.25,00,000/ - M/S. MARINE ELECTRONICS AND NAVIGATION SYSTEMS PVT. LTD. RS.33,34,274/ - THE PROVISION OF SECTION 2(22)(E), THEREFORE, IN HIS VIEW , CLEARLY APPLIED TO THE ASSESSEES CASE. THE LD. C IT(A) , IN APPEAL, HOWEVER, DELETED THE ADDITION BY RELYING ON THE DECISION IN THE CASE OF , AMONG OTHERS, CIT VS. H. K. MITTAL [1996] 219 ITR 420 (ALL) AND CIT VS. BHAUMIK COLOR P. LTD . [2009] 118 ITD 1 (MUM) (SB) . AGGRIEVED, THE REVENUE IS IN APPEAL. 5 . WE HAVE THE PARTY BEFORE US , AND PERUSED THE MATERIAL ON RECORD. BEFORE US, IT WAS AT THE VERY OUTSET OBSERVED THAT THE ASSESSEE HAD PLEADED ITS CASE BEFORE THE REVENUE WITH REFERENCE TO THE DECISION BY THE SPECIAL BENCH OF THIS TRIBUNAL IN BHAUMIK COLOR P. LTD . (SUPRA) , AND WHICH H AS SINCE BEEN APPROVED BY THE HONBLE JURISDICTIONAL HIGH COURT IN CIT VS. UNIVERSAL MEDICARE PVT. LTD. [2010] 324 ITR 263 (BOM) . ACCORDINGLY, NO CASE FOR DEEMING THE IMPUGNED LOAN S AS DIVIDEND U/S. 2(22)(E) OF THE ACT WOULD ARISE IN THE FACTS AND CIRCUMST ANCES OF THE CASE. THE LD. DEPARTMENTAL REPRESENTATIVE (DR), ON BEING QUESTIONED IN THE MATTER , COULD NOT REBUT THE FACT THAT THE ASSESSEE - COMPANY IS NOT A SHAREHOLDER, REGISTERED OR BENEFICIARY , IN THE TWO LONEE - 3 ITA NO. 3059/MUM/2013 (A.Y. 2008 - 09) ITO VS. MEANS INFRASTRUCTURE (INDIA) P. LTD. COMPAN IES ; THE SHARE HOLDING OF BOTH THE PA YER AND THE PAYEE COMPANY BEING IN FACT LISTED IN THE ASSESSMENT ORDER ITSELF. IN TERMS OF THE DECISION IN UNIVERSAL MEDICARE PVT. LTD. , EVEN OTHERWISE BINDING ON US, NO DIVIDEND U/S.2(22)(E) COULD BE ASSESSED IN THE HANDS OF THE PERSON OTHER THAN THE SHAR E - HOLDER OF THE LONEE - COMPANY , WHO IS IN VIEW OF THE RELATIONSHIP THEREWITH, CONSIDERED AS HAVING DISTRIBUTED ITS ACCUMULATED PROFIT IN THE GARB OR FORM OF A LOAN. IT THEREBY APPROVE D THE DECISION BY THE S PECIAL B ENCH OF THE TRIBUNAL IN BHAUMIK COLOR P. LT D . (SUPRA) , AND IS ALSO IN CONFORMITY WITH THE DECISION IN THE CASE OF H. K. MITTAL (SUPRA). RESPECTFULLY FOLLOWING THE SAME, WE HOLD THAT THE IMPUGNED LOANS CANNOT BE DEEMED AS DIVIDEND U/S.2(22)(E) OF THE ACT. WE DECIDE ACCORDINGLY. 7. IN THE RESULT, T HE R EVENUE S APPEAL IS DISMISSED ORDER PRONOUNCED IN THE OPEN COURT ON APRIL 10 , 201 5 SD/ - SD/ - ( D. MANMOHAN ) (S ANJAY ARORA) / VI CE PRESIDENT / A CCOUNTANT MEMBER MUMBAI ; DATED : 10 . 0 4 .201 5 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI