Shiva casting Pvt. Ltd, V. Joint Commissioner Of Income Tax,

ITA 34/CHANDI/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6988 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 09-02-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 21-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI SARANGA L
• Assessee Lawyers: RAJIV DATTA
• Keywords: Unexplained investment; Capital asset; Opportunity of being heard; Rule of consistency; Deemed dividend; Commercial expediency
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND DR.B.R.R.KUMAR, ACCOUNTANT MEMBER ITA NO. 34/CHD/2016 ASSESSMENT YEAR: 2010-11 M/S SHIVA CASTINGS PVT. LTD. VS. JCIT, RANGE VILL & PO- TOORAN MANDI GOBINDGARH AMLOH ROAD, MANDI GOBINDGARH PAN NO. AACCS3543H (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. RAJIV DATTA REVENUE BY : SH. RAVI SARANGAL DATE OF HEARING : 27/07/2017 DATE OF PRONOUNCEMENT : 11/08/2017 ORDER PER BENCH: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST THE ORDER OF LD. CIT(A), PATIALA DT. 16/11/2015. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. THAT THE ORDER PASSED BY LEARNED CIT(A) IS AGAIN ST LAW AND FACTS OF THE CASE IN AS MUCH AS THE LEARNED CIT(A) WAS NOT JUSTI FIED TO UPHOLD THE ACTION OF THE LEARNED A.O. IN REJECTING THE BOOKS OF ACCOUNTS . 2. THAT THE LEARNED CIT(A) HAS ERRED IN UPHOLDING T HE SPECIFIC CONSUMPTION OF POWER APPLICABLE TO THE ENTIRE PERIOD BY CONSIDE RING THE UNIFORM PRODUCTION CONDITIONS OVER THE PERIOD, WHEREAS THE ASSESSEE IS NOT RUNNING AN AUTOMATIC PRODUCTION UNIT. 3. THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED TO ARB ITRARILY UPHOLD THE ADDITION OF RS. 14,13,301/- AS AGAINST THE TOTAL ADDITION OF RS. 39,57,297/- ON ACCOUNT OF ALLEGED INVESTMENT REQUIRED FOR ALLEGED UNACCOUNTED PRODUCTION. 4. THAT THE LEARNED CIT(A)WAS NOT JUSTIFIED TO UPHO LD THE ADDITION OF RS. 9,94,486/- ON ACCOUNT OF ALLEGED UNACCOUNTED PROFIT ON ALLEGED UNACCOUNTED SALE OF 1349.972 M.T. 5. THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED TO UPH OLD THE ADDITION OF RS. 40310/- UNDER SECTION 36(1)(III) ON ACCOUNT OF DISA LLOWANCE OF INTEREST ON CAPITAL WORK IN PROGRESS. 6. THAT ON THE FACTS & CIRCUMSTANCES OF THE CASE TH E LD. CIT(A) HAS ERRED IN UPHOLDING THE ADDITION OF RS. 9,50,000/- U/S 2(22)( E) OF THE INCOME TAX ACT 1961. 7. THAT ON THE FACTS & CIRCUMSTANCE OF THE CASE THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ADDITION OF RS. 45,173/- ON ACCOUNT O F DISALLOWANCE OF INTEREST. 8. WITHOUT PREJUDICE TO GROUND NO. 3 & 4 OF APPEAL, THE LEARNED CIT(A) HAS ERRED IN NOT TELESCOPING THE ADDITION ON ACCOUNT OF G.P. WHILE CONFIRMING THE ADDITION OF INVESTMENT IN UNACCOUNTED PRODUCTION. 2 3. THE BRIEF FACTS RELATING TO THE ISSUES UNDER CON SIDERATION ARE THAT THE ASSESSEE COMPANY IS A STEEL RE-ROLLING MIL L ENGAGED IN MANUFACTURING OF IRON AND STEEL PRODUCTS VIZ STRUCT URAL STEEL LIKE ANGLES, CHANNELS, FLATS, JOISTS, BEAMS ETC. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER ASKED THE ASSESS EE TO FURNISH DETAILS OF DAILY PRODUCTION OF FINISHED GOODS AS WE LL AS THE DETAILS OF THE MANUFACTURING PROCESS INVOLVED. THE ASSESSING O FFICER FURTHER OBSERVED THAT THE AMOUNT OF ELECTRICITY CONSUMED WA S DIRECTLY RELATED TO THE PRODUCTION OF FINISHED GOODS. IN ORD ER TO CO-RELATE THE CONSUMPTION OF ELECTRICITY VIS--VIS PRODUCTION SHO WN, THE ASSESSING OFFICER GATHERED INFORMATION REGARDING THE CONSUMPT ION OF ELECTRICITY FROM THE ELECTRICITY BOARD. THE ASSESSI NG OFFICER ANALYZED THE CONSUMPTION DATA OF ELECTRICITY VIS-A VIS THE P RODUCTION OF FINISHED GOODS AND OBSERVED THAT THERE WERE WIDE VA RIATION IN RATIO OF ELECTRICITY UNITS CONSUMED TO PER METRIC TONS OF FINISHED GOODS PRODUCED DURING THE YEAR. HE OBSERVED THAT THE ELE CTRICITY CONSUMPTION PMT OF FINISHED GOODS VARIES FROM 64.32 UNITS TO 114.06 UNITS WHILE THE AVERAGE FOR THE ENTIRE YEAR IS 84.1 6 UNITS. HE FURTHER OBSERVED THAT ON SOME DAYS, ELECTRIC UNITS CONSUMED WERE VERY LOW WHEREAS FINISHED GOODS PRODUCED WERE VERY HIGH GIVI NG A VERY LOW VALUE OF ELECTRIC UNITS CONSUMED TO PER TON OF FINI SHED GOODS, WHEREAS ON SOME OTHER DAYS, ELECTRIC UNITS CONSUMED WERE VERY HIGH WHEREAS THE FINISHED GOODS PRODUCED WERE VERY LESS GIVING A VERY HIGH VALUE OF ELECTRIC UNITS CONSUMED PER METRIC UN IT OF FINISHED GOODS. HE FURTHER OBSERVED THAT EVEN ON SOME DAYS T HOUGH THERE WAS ELECTRICITY CONSUMPTION YET NO PRODUCTION WAS S HOWN. HE FURTHER NOTED THAT OTHERWISE ON OTHER DAYS, THERE WAS ALSO A BALANCE AND CONSISTENCY IN CONSUMPTION OF ELECTRIC UNITS VIS-A- VIS PRODUCTION OF FINISHED GOODS. HE, THEREFORE, OBSERVED THAT IT IND ICATED THAT THE DAILY PRODUCTION RECORDED BY THE ASSESSEE OF THE FI NISHED GOODS WAS NOT CORRECT AND, HENCE, NOT RELIABLE. HE OBSERVED T HAT THE DATA RELATING TO THE DAILY PRODUCTION HAD BEEN MAINTAINE D AS PER ACTUAL PRODUCTION. WHEN CONFRONTED IN THIS RESPECT, THE AS SESSEE EXPLAINED THAT THE CONSUMPTION OF ELECTRICITY WAS DEPENDENT O N VARIOUS FACTORS AS DETAILED IN HIS REPLY WHICH HAS BEEN REP RODUCED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. THE ASS ESSING OFFICER, HOWEVER, WAS NOT SATISFIED WITH THE ABOVE REPLY OF THE ASSESSEE. HE ULTIMATELY HELD THAT THE ASSESSEE COMPANY WAS INVOL VED IN 3 UNACCOUNTED PRODUCTION OF FINISHED GOODS WHICH RESU LTED IN UNACCOUNTED SALES AND PURCHASES. HE, THEREFORE, HEL D THAT THE SALE AND PURCHASE FIGURES IN THE BOOKS OF ACCOUNT OF THE ASSESSEE WERE NOT CORRECT AND HE ACCORDINGLY REJECTED THE BOOKS O F ACCOUNT OF THE ASSESSEE BY INVOKING THE PROVISIONS OF SECTION 145(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') AND PROCE EDED TO FRAME THE ASSESSMENT IN THE MANNER AS PROVIDED U/S 144 OF THE ACT. HE THEREAFTER ESTIMATED THE INCOME OF THE ASSESSEE ON THE BASIS OF ELECTRIC UNITS CONSUMED FOR 12 MONTHS AS PER CHART REPRODUCED IN THE ASSESSMENT ORDER. HE COMPARED THE SAME WITH THA T SHOWN IN THE BOOKS OF ACCOUNT OF THE ASSESSEE AND ESTIMATED THE UNACCOUNTED PRODUCTION FOR EACH MONTH. THEREAFTER, ON THE BASIS OF AVERAGE SALES RATE, THE VALUE OF TOTAL UNACCOUNTED PRODUCTION WAS ESTIMATED IN MONETARY TERMS AND THEN ADOPTING THE GROSS PROFIT R ATE SHOWN BY THE ASSESSEE, THE UNACCOUNTED PROFIT OUT OF THE UNA CCOUNTED PRODUCTION WAS WORKED OUT. SECONDLY, THE PEAK UNACC OUNTED PRODUCTION FOR THE RELEVANT MONTH WAS DETERMINED AN D BY MULTIPLYING THE AVERAGE SALE RATE OF FINISHED GOODS , THE UNACCOUNTED INVESTMENT WAS WORKED OUT. THE ASSESSI NG OFFICER IN THIS WAY WORKED OUT THE TOTAL UNACCOUNTED INVESTMEN T OF THE ASSESSEE IN THE UNACCOUNTED PRODUCTION AT RS. 39,5 7,297/- AND RS. 994486/- BEING UNACCOUNTED PROFIT OUT OF UNACCOUNTE D PRODUCTION AND ADDED BACK THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. 4. BEING AGGRIEVED FROM THE ABOVE ORDER OF THE ASSE SSING OFFICER THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). TH E LD. CIT(A) AFTER GOING THROUGH THE SUBMISSIONS OF THE ASSESSEE HELD THAT AN AMOUNT OF RS. 14,13,301/- MAY BE TREATED AS UNACCOUNTED IN VESTMENTS. LD. CIT(A) ALSO CONFIRMED THE AMOUNT OF RS. 9,94,486/-. 5. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PA RTIES. 6. IT WAS ALSO BROUGHT TO THE NOTICE THAT SUBSEQUE NT TO THE PASSING OF THE ABOVE STATED IMPUGNED ASSESSMENT ORD ER, A DETAILED STUDY WAS CARRIED OUT BY A COMMITTEE HEADED BY THE ADDITIONAL COMMISSIONER OF INCOME TAX, RANGE, MANDI, GOBINDGAR H HAVING ALL THE ASSESSING OFFICERS OF THE RANGE AS ITS MEMBERS. THE COMMITTEE WAS ASSISTED BY THE EXPERTS FROM THE NISST (NATIONA L INSTITUTE OF THE SECONDARY STEEL TECHNOLOGY) AND ALSO THE INDUSTRY R EPRESENTATIVES. ON THE BASIS OF THE REPORT OF THE COMMITTEE, IT WAS DECIDED THAT IF 4 THE VARIATION IN THE CONSUMPTION OF THE ELECTRICITY IS WITHIN THE RANGE OF 15% OF THE YEARLY AVERAGE CONSUMPTION OF POWER, THE BOOK RESULTS SHOULD BE ACCEPTED. 7. LD. COUNSEL FOR THE ASSESSEE, RELYING UPON THE R EPORT OF THE COMMITTEE CONSTITUTED BY THE PRINCIPAL COMMISSIONER OF INCOME TAX, PATIALA ARGUED THAT HE WAS COVERED ON THE ISSUE OF PRODUCTION AS DECIDED BY THE COMMITTEE. THE ASSESSEE WAS ENTITLED TO BENEFIT OF 15% VARIATION IN CONSUMPTION OF ELECTRICITY PER MET RIC TON OF FINISHED GOODS PRODUCED FROM THE AVERAGE WORKED OUT ON YEARL Y BASIS AND THE VARIATION UP TO 15% WOULD NOT WARRANT ANY ADVER SE COGNIZANCE. HE ACCORDINGLY ARGUED THAT SINCE PURSUANT TO THE RE PORT OF THE COMMITTEE, THE ASSESSING OFFICERS HAVE BEEN ALREADY FOLLOWING THESE NORMS WHILE MAKING THE ASSESSMENT IN SIMILAR CASES AND IN SAME SET OF CIRCUMSTANCES AND HAS ACCEPTED THE BOOKS RESULTS SHOWN BY THE DIFFERENT ASSESSES. THE LD. AR HAS SUBMITTED THE CH ART OF PER METRIC TON ELECTRIC UNIT CONSUMPTION WHICH IS MENTIONED H ERE UNDER: (I) PRODUCT MANUFACTURED- STEEL INGOTS (INDUCTION F URNACE). (II) YEARLY AVERAGE OF PMT UNITS ON FINISHED GOODS PRODUCED AS PER ANNEXURE A TO THE ASSTT. ORDER. 972.00 (III) 15% VARIATION TO THE ABOVE AVERAGE MAXIMUM 1117.80 MINIMUM 826.20 (IV) MAXIMUM AVERAGE IN 10 DAYS BLOCK AS PER ANNEXU RE E TO THE ASTT. ORDER FROM 22/06/09 TO 09/07/09. 1048.71 (V) MINIMUM AVERAGE IN 10 DAYS BLOCK AS PER ANNEXUR E E TO THE ASSTT. ORDER FROM 10/07/09 TO 20/07/09. 879.67 (VI) REMARKS COVERED WITHIN 15% VARIATION OF THE A VERAGE. 8. THIS TRIBUNAL VIDE ITS COMMON ORDER DATED 14.2.2017 , PASSED IN THE CASE OF M/S MODI OIL & GENERAL MILL, MANDI GOB INDGRH AND OTHERS IN ITA NO. 149/CHD/2016 AND IN ITA NO. 662/C HD/2016IN THE CASE OF M/S.UNIPEARL ALLOYS, OBSERVING THAT CONSEQUENT TO THE REPORT OF THE COMMITTEE CONSTITUTED BY THE PRINCIPAL COMMI SSIONER OF INCOME TAX, PATIALA CERTAIN INTERNAL GUIDELINES REG ARDING ACCEPTABILITY OF VARIATION UPTO 15% HAVE BEEN ISSUE D AND FURTHER THAT NO ADDITIONS HAVE BEEN MADE ON SIMILAR ISSUE I N SUBSEQUENT YEARS BY THE ASSESSING OFFICER, HAS REMANDED THE MA TTER TO THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE IS SUE AFRESH IN 5 ACCORDANCE WITH LAW IN THE LIGHT OF THE INTERNAL GU IDELINES ISSUED BY THE PRINCIPAL COMMISSIONER OF INCOME TAX, PATIALA. 9. IN OUR VIEW THIS MATTER NEEDS TO BE RESTORED TO THE ASSESSING OFFICER IN THE PRESENT APPEALS, AS THE LD. CIT(A) D IDNT HAVE THE BENEFIT OF COMMITTEE REPORT WHILE DECIDING THE ABOV E APPEALS AS IN OTHER SIMILAR CASES WHERE IN THE INTERNAL GUIDELINE S OF THE COMMITTEE CONSTITUTED BY THE PRINCIPAL COMMISSIONER OF INCOM E TAX, PATIALA WERE FOLLOWED. THE COMMITTEE SO CONSTITUTED WAS A B ROAD BASED MULTI MEMBER BODY HAVING ADDITIONAL COMMISSIONER OF INCOME TAX, MANDI GOBINDGARH AS ITS HEAD AND ALL THE ASSESSING OFFICERS OF THE RANGE AS ITS MEMBERS. IT WAS ALSO ASSISTED BY THE E XPERTS OF THE NATIONAL INSTITUTE OF THE SECONDARY STEEL TECHNOLOG Y (NISST) AND THE INDUSTRY REPRESENTATIVES. THE DEPARTMENT HAS ACCEPT ED THE VARIATION OF 15% IN CONSUMPTION OF ELECTRICITY PER METRIC TON OF FINISHED GOODS AS PER THE REPORT OF THE COMMITTEE. 10. CONSIDERING THE ABOVE FACTS AND CIRCUMSTANCES A ND SINCE THE FACTS AND ISSUE INVOLVED IN ALL THE OTHER CAPTIONED APPEALS ARE IDENTICAL, AND IN VIEW OF OUR FINDINGS GIVEN ABOVE, FOLLOWING THE PRINCIPLE OF CONSISTENCY LAID DOWN BY THE HON'BLE P UNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. RIETA BISCUITS C O. (P) LTD [2009] 309 ITR 154 (P&H)WHERE IN IT WAS HELD THAT THE BOOK RE SULTS SHOWN BY THE ASSESSEE COMPANY FOR THE YEAR UNDER CONSIDERATION N EED TO BE ACCEPTED, AS WELL. 11. WE THEREFORE, SET ASIDE THE ACTION OF THE ASSES SING OFFICER IN REJECTING THE BOOKS OF ACCOUNT AND WITH DIRECTIONS TO FOLLOW THE GUIDELINES FORMULATED BY THE COMMITTEE CONSTITUTED BY THE PR. CIT(A), PATIALA AND THE INTERNAL GUIDELINES ISSUED REGARDING ACCEPTABILITY OF VARIATION UPTO 15%. THE ASSESSING OFFICER SHALL GIVE REASONABLE, SUFFICIENT OPPORTUNITY OF BEING HEARD T O THE ASSESSEE AND ASSESSES SHALL BE AT LIBERTY TO RAISE ANY CONTE NTION BEFORE ASSESSING OFFICER FOR COMPLETION OF THE ASSESSMENT IN ACCORDANCE WITH LAW. 12. IN THE RESULT, APPEAL OF THE ASSESS ON THIS GRO UND IS ALLOWED FOR STATISTICAL PURPOSES. 6 13. GROUND NO. 5 IS THAT THE LD. CIT(A) WAS NOT JUS TIFIED TO UPHOLD THE ADDITION OF RS. 40,310/- UNDER SECTION 36(1)(II I) ON ACCOUNT OF INTEREST ON CAPITAL WORK IN PROGRESS. 14. THE ASSESSING OFFICER OBSERVED THAT THERE IS CA PITAL WORK IN PROGRESS RELATING TO BUILDING AND SHED UNDER CONSTR UCTION, PLANT & MACHINERY UNDER INSTALLATION. THE ASSESSEE HAS CLAI MED INTEREST EXPENDITURE OF RS. 3,43,780/-. THE ASSESSING OFFICE R HAS DISALLOWED INTEREST ON THE CAPITAL WORK IN PROGRESS TO THE TUN E OF RS. 40,310/- ON ACCOUNT OF INTEREST FOLLOWING THE ORDER OF HONBLE PUNJAB & HARYANA HIGH COURT IN CASE OF M/S ABHISHEK INDUSTRIES LTD. VS. CIT (286 ITR 1). 15. THE LD. CIT(A) UPHELD THE ADDITION ON THE GROUN DS THAT THE APPELLANT HAS MIXED TYPE OF FUNDS AND COULD NOT GIV E NECESSARY EVIDENCE REGARDING THE INTEREST BEARING AND NON INT EREST BEARING FUND VIS--VIS APPLICATION OF THE SAME AND HELD THA T INTEREST PERTAINING TO CAPITAL WORK IN PROGRESS WAS NOT CAPI TALIZED AS PER EXPLANATION 8 OF SECTION 43 (I) PROVISO TO SECTION 36(1)(III). 16. LD. DR RELIED ON THE ORDER OF THE CIT(A) , WHIL E LD. DR RELIED ON THE SUBMISSIONS TAKEN BEFORE THE CIT(A). 17. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. 18. BEFORE US, THE LD. AR SUBMITTED THAT THE ASSESS EE HAS NOT BORROWED ANY FUNDS FOR RAISING THE CAPITAL ASSETS P ERTAINING TO WORK IN PROGRESS. IT IS ALSO TO BE NOTED THAT THE FINANC E ACT 2003 HAS AMENDED SECTION 36(1)(III) BY INSERTING A PROVISO T O THE EXISTING PROVISION W.E.F 01.04.2004 RELEVANT TO ASSESSMENT Y EAR 2004-05. THE PROVISO INSERTED TO THE EXISTING PROVISION OF SECTI ON 36(1)(III) IS REPRODUCED AS UNDER: PROVIDED THAT ANY AMOUNT OF THE INTEREST PAID, IN RESPECT OF CAPITAL BORROWED FOR ACQUISITION OF AN ASSET FOR EX TENSION OF EXISTING BUSINESS OR PROFESSION (WHETHER CAPITALIZED IN THE BOOKS OF ACCOUNT OR NOT); FOR ANY PERIOD BEGINNING FROM THE DATE ON WHICH THE CAPITAL WAS BORROWED FOR ACQUISITION OF THE ASSET T ILL THE DATE ON WHICH SUCH ASSET WAS FIRST PUT TO USE, SHALL NOT BE ALLOWED AS DEDUCTION. THE JUDGMENT OF VARIOUS COURTS IN THE CASE OF HERO CYCLES (P) LTD. VS. CIT, LUDHIANA C.A. NO. 514 OF 2008 DT. 05/11/20 15, BRIGHT ENTERPRISES PVT. LTD. VS. CIT, JALANDHAR (2016) 381 ITR 107 (P&H) HELD THAT NO DISALLOWANCE OF INTEREST IS CALLED FOR WHER E THE ASSESSEE HAS 7 GOT SUFFICIENT OWN FUNDS. THE ASSESSING OFFICER IS DIRECTED TO GO THROUGH THE FUND POSITION NAMELY CAPITAL AND INTERE ST FREE ADVANCES, RESERVES AND SURPLUS TO DETERMINE WHETHER ANY BORROWED FUNDS HAVE BEEN UTILIZED MORE THAN AVAILABLE OWN FU NDS AND TAKE A DECISION KEEPING IN VIEW THE DECISIONS RENDERED ABO VE. IF SUFFICIENT OWN FUNDS ARE AVAILABLE, NO DISALLOWANCE IS CALLED FOR. THIS GROUND MAY BE TREATED AS SET ASIDE TO THE FILE OF ASSESSIN G OFFICER. 19. THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES . 20. AS REGARDS GROUND NO.6 THE ASSESSING OFFICER MA DE ADDITION OF RS. 95,0000/- UNDER SECTION 2(22)(E) OF THE INCOME TAX ACT, 1961. 21. THE LD. CIT(A) HAS CONFIRMED THE ADDITION ON TH E GROUNDS THAT THE PAYMENT SQUARELY FALLS UNDER THE PROVISION OF SECTI ON 2(22)(E) AS THE LOAN HAS BEEN RECEIVED FROM ONE M/S DASHMESH CASTINGS. THE E NTITY ANIL GARG (HUF) IS HOLDING 21.67% EQUITY IN THE ASSESSEE COMPANY IS AL SO HOLDING 11.27% IN M/S DASHMESH CASTINGS. 22. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH T HE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. 23. THE LD. AR ARGUED THAT THEY ARE IN THE NATURE O F INTER CORPORATE DEPOSITS AND HENCE NO ADDITION IS CALLED FOR. HE HAS SUBMITT ED COPY OF ACCOUNT FOR THE AY IN QUESTION WHERE THE LEDGER ACCOUNT REVEALS THE CONTINUOUS TRANSACTIONS BETWEEN THE TWO PARTIES WHICH DO NOT GIVE RISE TO A NY ADVANCES. 24. LD. DR STRONGLY SUPPORTED THE ORDER OF THE ASSE SSING OFFICER. 25. VARIOUS QUOTES HAVE DEALT THE ISSUE OF DEEMED D IVIDEND UNDER SECTION 2(22)(E) OF THE ACT, A SNAPSHOT OF JUDGMENTS IS MEN TIONED BELOW: 1. KOLKATA ITAT BENCH IN CASE OF IFB AGRO INDUSTRIE S LTD. VS. JCIT ITA NO. 1721/KOL/2012 [2013-ITRV-ITAT-KOL-172] HAS HELD INT EREST ON INTER CORPORATE DEPOSITS IS NOT AN INTEREST ON LOAN OR ADVANCE AND WOULD BE NOT INCLUDIBLE IN THE CHARGEABLE INTEREST UNDER THE INTEREST TAX ACT. SO INTERCORPORATE DEPOSITS CANNOT BE TREATED AS A LOAN FALLING WITHIN THE PREVIEW OF SECTION 2(22)(E). 2. BOMBAY ITAT IN BOMBAY OIL INDUSTRIES LTD VS. DC IT 2009-TIOL -297-ITAT- MUM; (2009) 28 SOT 383 (MUM) HAS HELD THAT INTER-CO RPORATE DEPOSITS ARE NOT DEEMED DIVIDEND UNDER SECTION 2(22)(E) OF THE INCOM E TAX ACT; IT IS CLEAR THEREIS DISTINCTION BETWEEN DEPOSITS VIS--VIS LOANS/ADVANC ES. NOT TO SHAREHOLDER DEEMED DIVIDEND IS ASSESSABLE INTEREST HE HANDS OF THE SHAREHOLDER IN THE HANDS OF THE SHAREHOLDER ONLY. FEW JUDICIAL PRONOUNCEMENT ON THE SAME ARE AS UNDER: 1. BOMBAY HIGH COURT IN CASE OF CIT VS. JIGNESH P. SHAH ITA NO. 197/2013 [2015-ITR V-HIGH COURT-MUM-108] 372 ITR 392 HAS HELD THAT THE PROVISION OF SECTION 2(22)(E) CANNOT BE INVOKED UNLESS THE ASESSEE ITSELF IS THE SHAREHOLDER OF THE COMPANY, WHO WAS LENDING MONEY TO HIM. 8 2. DELHI HIGH COURT IN CIT VS. ANKITECH P. LTD. [20 11-ITRV-HIGH COURT-DEL-109] 340 ITR 14 HAS HELD THAT S. 2(22)(E) DEEMED DIVIDEND NOT ASSESSABLE IF RECIPIENT IS NOT SHAREHOLDER. SINCE THE ASSESSEES CASE IS COVERED BY THE ABOVE J UDGMENTS, IT IS HEREBY HELD THAT NO DEEMED DIVIDEND IS CHARGEABLE IN THE HANDS OF THE ASSESSEE. 26. IN THE RESULT THIS GROUND OF APPEAL IS ALLOWED. 27. AS REGARDS GROUND NO. 7, THE FACTS ARE THAT THE ASSESSEE HAS GIVEN INTEREST FREE ADVANCE OF RS. 6.00 LACS WITHOUT ANY COMMERCIA L EXPEDIENCY FOR 229 DAYS. THE ASSESSING OFFICER HAS DISALLOWED INTEREST OF RS . 45,173/- @ 12% RELYING ON THE CASE OF CIT VS. ABHISHEK INDUSTRIES LTD. 286 ITR 1 (P&H). THE LD. CIT HAS CONFIRMED THE ADDITION. 28. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH T HE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. 29. BEFORE US THE LD. AR SUBMITTED THAT THE ADVANCE WAS GIVEN FOR PURCHASING A CRANE TO M/S ASIAN CRANES AND ELEVATOR S THE SAID FIRM DID NOT SUPPLY THE CRANE AND AS SUCH THE ADVANCE WAS REFUND ED BACK. THE AMOUNT WAS GIVEN BY CHEQUE ON 19/06/2009 AND SINCE THE CRA NE COULD NOT BE SUPPLIED THE AMOUNT WAS RECEIVED BACK ON 04/02/2010. HE ARGU ED THAT THE ADVANCES GIVEN ARE PURELY IN NATURE OF COMMERCIAL EXPEDIENCY AND ALTERNATIVELY ARGUED THAT THE ASSESSEE HAS BROUGHT SUFFICIENT OWN FUNDS TO EXTEND SUCH LOAN. 30. LD. DR STRONGLY SUPPORTED THE ORDER OF THE ASSE SSING OFFICER. 31. THIS ISSUE HAS BEEN AKIN TO THE ISSUE DISCUSSED IN GROUND NO. 5 IF SUFFICIENT OWN FUNDS ARE AVAILABLE, NO DISALLOWANCE IS CALLED FOR. THIS GROUND MAY BE TREATED AS SET ASIDE TO THE FILE OF ASSESSIN G OFFICER. 32. THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES . 33. IN THE RESULT APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11/08/2017 SD/- SD/- (DIVA SINGH) (B.R.R.K UMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 11/08/2017 AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR .