M/s. Govind Promoters Pvt. Ltd., Kolkata V. Principal CIT, Central - 2, Kolkata, Kolkata

ITA 546/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5294 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 28-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K NAYAK
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Opportunity of being heard; Deemed dividend; Set aside
• Section: 143(3); 2(22)(e); 6; 263

Judgement Text

I.T.A. NO S. 546, 547 & 548/KOL/2018 ASSESSMENT YEARS: 2012-2013, 2013-14 & 2014-2015 M/S. GOVIND PROMOTERS PVT. LIMITED 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NOS. 546, 547 & 548/KOL/2018 ASSESSMENT YEARS: 2012-2013, 2013-2014 & 2014-2015 M/S. GOVIND PROMOTERS PVT. LIMITED,................ ...............APPELLANT CONTINENTAL CHAMBERS, 4 TH FLOOR, 15A, HEMANTA BASU SARANI, KOLKATA-700 001 [PAN: AAACG 9689 C] -VS.- PRINCIPAL COMMISSIONER OF INCOME TAX,.............. ..........................RESPONDENT CENTRAL, KOLKATA-2, AAYAKAR BHAWAN POORVA, 5 TH FLOOR, ROOM NO. 501, 110, SHANTI PALLY, KOLKATA-700 107 APPEARANCES BY: SHRI MIRAJ D. SHAH, FCA, FOR THE APPELLANT SHRI A.K. NAYAK, CIT, D.R., FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : MARCH 19, 2019 DATE OF PRONOUNCING THE ORDER : MAY 29, 2019 O R D E R PER BENCH:- THESE THREE APPEALS FILED BY THE ASSESSEE ARE DIRE CTED AGAINST THREE SEPARATE ORDERS ALL DATED 05.02.2018 OF LD. PRINCIP AL COMMISSIONER OF INCOME TAX, CENTRAL, KOLKATA-2 PASSED UNDER SECTION 263 OF THE INCOME TAX ACT, 1961 FOR A.YS. 2012-13, 2013-14 AND 2014-1 5. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY. I N THE ASSESSMENTS COMPLETED UNDER SECTION 153A/143(3) OF THE ACT FOR ALL THE THREE YEARS UNDER CONSIDERATION VIDE ORDERS DATED 30.03.2016, T HE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE ASSESSING OFFICER AT RS.66,37,960/-, RS.24,39,870/- AND RS.19,75,090/- FOR A.YS. 2012-13 , 2013-14 AND 2014- 15 RESPECTIVELY. THE RECORD OF THE SAID ASSESSMENTS CAME TO BE EXAMINED BY THE LD. PRINCIPAL CIT. ON SUCH EXAMINATION, HE F OUND THAT THE ASSESSEE- COMPANY HAD RECEIVED UNSECURED LOANS OF RS.5,07,00, 000/-, I.T.A. NO S. 546, 547 & 548/KOL/2018 ASSESSMENT YEARS: 2012-2013, 2013-14 & 2014-2015 M/S. GOVIND PROMOTERS PVT. LIMITED 2 RS.2,50,00,000/- AND RS.1,65,00,000/- FROM ANOTHER GROUP COMPANY NAMELY M/S. VIJAYSHREE INDUSTRIES PVT. LIMITED DURI NG THE PREVIOUS YEARS RELEVANT TO ASSESSMENT YEARS 2012-13, 2013-14 & 201 4-15 RESPECTIVELY. HE ALSO FOUND THAT THE ASSESSEE-COMPANY HAD ALSO RE CEIVED UNSECURED LOANS OF RS.75,00,000/-, RS.1,28,00,000/- AND RS.81 ,00,000/- FROM THE OTHER GROUP COMPANIES NAMELY M/S. MANTRI ENGINEERIN G CO. PVT. LIMITED, M/S. SUPRABHA INDUSTRIES LTD. AND M/S. MANTRI ENGIN EERING CO. PVT. LIMITED DURING THE YEARS 2012-13, 2013-14 AND 2014- 15 RESPECTIVELY. HE FURTHER NOTED THAT THE ASSESSEE-COMPANY WAS SHAREHO LDER IN ALL THESE THREE GROUP COMPANIES NAMELY M/S. VIJAYSHREE INDUST RIES PVT. LIMITED, M/S. MANTRI ENGINEERING CO. PVT. LIMITED AND M/S. S UPRABHA INDUSTRIES LIMITED HAVING SUBSTANTIAL SHAREHOLDING AND ALL THE SE THREE COMPANIES WERE HAVING SUBSTANTIAL ACCUMULATED PROFIT DURING T HE YEARS UNDER CONSIDERATION. ACCORDING TO THE LD. PRINCIPAL CIT, THE LOAN AMOUNTS RECEIVED BY THE ASSESSEE-COMPANY DURING THE YEARS U NDER CONSIDERATION THUS WERE LIABLE TO BE ASSESSED IN THE HANDS OF THE ASSESSEE-COMPANY AS DEEMED DIVIDEND UNDER SECTION 2(22)(E) OF THE ACT A ND THERE WAS AN ERROR IN THE ORDERS OF THE ASSESSING OFFICER PASSED UNDER SECTION 153A/143(3) IN NOT MAKING ANY ENQUIRIES/VERIFICATIO N IN RESPECT OF THE SAID LOANS SO AS TO CONSIDER THE APPLICABILITY OF S ECTION 2(22)(E). HE ACCORDINGLY ISSUED NOTICES UNDER SECTION 263 REQUIR ING THE ASSESSEE TO SHOW-CAUSE AS TO WHY REMEDIAL ACTION SHOULD NOT BE TAKEN BY EXERCISING THE POWERS UNDER SECTION 263 TO REVISE THE ORDERS P ASSED BY THE ASSESSING OFFICER UNDER SECTION 153A/143(3) FOR ALL THE THREE YEARS UNDER CONSIDERATION. 3. IN REPLY TO THE SHOW-CAUSE NOTICES ISSUED BY THE LD. PRINCIPAL CIT UNDER SECTION 263, A WRITTEN SUBMISSION WAS FILED B Y THE ASSESSEE VIDE LETTER DATED 11.12.2017 STATING, INTER ALIA, AS UND ER:- WITH RESPECT TO YOUR QUERY REGARDING IMPLICATION O F SECTION 2(22)(E) OF THE INCOME TAX ACT, 1961 WITH RESPECT T O LOAN TRANSACTIONS ENTERED INTO WITH M/S VIJAYSHREE INDUS TRIES PVT. LTD. AND M/S. MANTRI ENGINEERING COMPANY PVT. LTD., WE WOULD LIKE TO STATE THAT M/S VIJAYSHREE INDUSTRIES PVT. L TD. AND I.T.A. NO S. 546, 547 & 548/KOL/2018 ASSESSMENT YEARS: 2012-2013, 2013-14 & 2014-2015 M/S. GOVIND PROMOTERS PVT. LIMITED 3 MANTRI ENGINEERING COMPANY PVT. LIMITED HAS ADVANC ED LOAN TO THE ASSESSEE COMPANY IN ITS ORDINARY COURSE OF B USINESS AND LOAN ADVANCED BY A COMPANY IN THE ORDINARY COURSE O F ITS BUSINESS IS OUT OF PURVIEW OF SECTION 2(22)(E) OF T HE I. T. ACT, 1961. WE WOULD LIKE TO FURTHER SUBMIT THAT THE SAID COMPA NY HAD DULY CHARGED INTEREST ON THE LOAN GIVEN AND THUS SU CH TRANSACTION SHOULD BE TREATED AS BEING ENTERED DURI NG THE NORMAL COURSE OF BUSINESS. COPY OF LOAN CONFIRMATIO N AS WELL AS COPY OF AUDITED FINANCIAL STATEMENTS OF VIJAYSHR EE INDUSTRIES PVT. LTD. AND MANTRI ENGINEERING CO. PVT . LTD. FOR THE A.Y. 2012-13 ARE ENCLOSED HEREWITH FOR YOUR KIN D PERUSAL. HENCE, THE SAID LOAN TRANSACTION SHOULD NOT BE CONS IDERED AS DEEMED DIVIDEND AND CHARGEABLE IN THE HANDS OF THE ASSESSEE- COMPANY. IN SUPPORT OF OUR CONTENTION WE WOULD LIKE TO SUBMIT THAT THE HON' BLE KOLKATA HIGH COURT IN THE CASE OF PRADIP KUMAR MALHOTRA V CIT (2011) 338 ITR 538 HELD THAT FOR GRATUITOUS LOAN OR ADVANCES GIVEN BY A COMPANY TO THOSE CLASSES OF SHAREHOLDERS WOULD COME WITHIN THE PURVI EW OF SECTION 2(22)(E) BUT NOT TO THE CLAUSES WHERE LOAN OR ADVANCES IS GIVEN IN RETURN TO AN ADVANTAGE CONFERRED UPON T HE COMPANY BY SUCH SHAREHOLDERS. IN OUR CASE ALSO THE INTEREST PAID BY THE ASSESSEE COMPANY WAS A RETURN ON LOAN G IVEN BY THE AFORESAID COMPANIES. THE AMOUNT BEING NON- GRAT UITOUS IS NOT COVERED U/S 2(22)(E). THE SUBMISSIONS MADE BY THE ASSESSEE WERE NOT FOUND ACCEPTABLE BY THE LD. PRINCIPAL CIT. HAVING REGARD TO THE FACTS OF TH E CASE AND KEEPING IN VIEW CERTAIN JUDICIAL PRONOUNCEMENTS DISCUSSED BY H IM IN HIS IMPUGNED ORDER, HE HELD THAT THE ASSESSMENTS MADE BY THE ASS ESSING OFFICER UNDER SECTION 153A/143(3) FOR ALL THE THREE YEARS UNDER C ONSIDERATION WERE PASSED WITHOUT MAKING ANY ENQUIRY OR VERIFICATION R EGARDING THE APPLICABILITY OF SECTION 2(22)(E) TO THE LOANS IN Q UESTION RECEIVED BY THE ASSESSEE-COMPANY FROM THE OTHER GROUP COMPANIES, WH ICH WERE NECESSARY IN THE FACTS AND CIRCUMSTANCES OF THE CAS E AND SUCH LACK OF ENQUIRY OR VERIFICATION MADE THE SAID ORDERS ERRONE OUS INSOFAR AS PREJUDICIAL TO THE INTEREST OF REVENUE. HE ACCORDIN GLY SET ASIDE THE ORDERS PASSED BY THE ASSESSING OFFICER UNDER SECTION 153A/ 143(3) FOR BOTH THE YEARS UNDER CONSIDERATION VIDE ORDERS PASSED UNDER SECTION 263 WITH A DIRECTION TO THE ASSESSING OFFICER TO MAKE THE ASSE SSMENTS AFRESH AFTER MAKING PROPER ENQUIRY AND VERIFICATION ON THE ISSUE AND AFTER AFFORDING I.T.A. NO S. 546, 547 & 548/KOL/2018 ASSESSMENT YEARS: 2012-2013, 2013-14 & 2014-2015 M/S. GOVIND PROMOTERS PVT. LIMITED 4 REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. AGGRIEVED BY THE ORDERS OF THE LD. PRINCIPAL CIT PASSED UNDER SECTIO N 263 FOR ALL THE THREE YEARS UNDER CONSIDERATION, THE ASSESSEE HAS PREFERR ED THESE APPEALS BEFORE THE TRIBUNAL. 4. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. PRINCIPAL CIT VIDE HIS IMPUGNED ORDERS PASSED UNDER SECTION 263 H AS SET ASIDE THE ORDERS PASSED BY THE ASSESSING OFFICER UNDER SECTIO N 153A/143(3) OF THE ACT FOR ALL THE THREE YEARS UNDER CONSIDERATION ON THE GROUND THAT THE NECESSARY ENQUIRY OR VERIFICATION REGARDING APPLICA BILITY OF THE PROVISION OF SECTION 2(22)(E) TO THE LOANS IN QUESTION TAKEN BY THE ASSESSEE- COMPANY FROM OTHER GROUP COMPANIES WAS NOT MADE BY THE ASSESSING OFFICER. IN THIS REGARD, HE INVITED OUR ATTENTION T O THE COPIES OF NOTICES ISSUED BY THE ASSESSING OFFICER UNDER SECTION 142(1 ) PLACED IN HIS PAPER BOOK TO POINT OUT THAT THE DETAILS OF ALL THE LOANS AND ADVANCES WERE CALLED FOR BY THE ASSESSING OFFICER DURING THE COUR SE OF ASSESSMENT PROCEEDINGS AND THE SAME WERE DULY FURNISHED BY THE ASSESSEE. HE ALSO INVITED OUR ATTENTION TO THE RELEVANT ANNEXURE OF T HE TAX AUDIT REPORT SUBMITTED BY THE ASSESSEE ALONGWITH ITS RETURNS OF INCOME FOR ALL THE THREE YEARS UNDER CONSIDERATION TO POINT OUT THAT T HE LOAN AMOUNTS IN QUESTION TAKEN BY THE ASSESSEE FROM OTHER GROUP CON CERNS DURING THE YEARS UNDER CONSIDERATION AND SQUARED OFF DURING TH E SAID YEARS ITSELF WERE DULY REFLECTED THEREIN. HE ALSO POINTED OUT TH AT THE FULL PARTICULARS OF PERSONS WHO WERE BENEFICIAL OWNERS OF EQUITY SHA RES OF THE ASSESSEE- COMPANY HOLDING MORE THAN 10% SHARES WERE CALLED FO R BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND THE SAME WERE DULY FURNISHED BY THE ASSESSEE. HE SUBMITTED THAT T HE ASSESSEE-COMPANY DURING THE YEARS UNDER CONSIDERATION HAD PAID INTER EST ON THE LOANS IN QUESTION TAKEN FROM THE OTHER GROUP COMPMANIES AND THE SAME WAS DULY SHOWN IN THE RELEVANT ANNEXURE OF THE TAX AUDIT REP ORT SHOWING PAYMENTS TO RELATED PERSONS SPECIFIED IN SECTION 40 A(2)(B) OF THE ACT. HE CONTENDED THAT ALL THE RELEVANT DETAILS THUS WERE F URNISHED BY THE I.T.A. NO S. 546, 547 & 548/KOL/2018 ASSESSMENT YEARS: 2012-2013, 2013-14 & 2014-2015 M/S. GOVIND PROMOTERS PVT. LIMITED 5 ASSESSEE IN THE TAX AUDIT REPORTS FILED ALONGWITH T HE RETURNS OF INCOME AS WELL AS DURING THE COURSE OF ASSESSMENT PROCEEDI NGS AS PER THE REQUIREMENTS OF THE ASSESSING OFFICER. HE CONTENDED THAT SINCE THE ASSESSEE-COMPANY HAD PAID INTEREST ON THE LOAN AMOU NTS IN QUESTION TAKEN FROM OTHER GROUP COMPANIES, THE PROVISIONS OF SECTION 2(22)(E) WERE NOT APPLICABLE AS HELD BY THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF PRADIP KUMAR MALHOTRA (338 ITR 538). HE CONTENDE D THAT PROPER ENQUIRY AND VERIFICATION THUS WAS MADE BY THE ASSES SING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS AS REGARDS THE APPLICABILITY OF SECTION 2(22)(E) TO THE LOAN AMOUNTS IN QUESTION RE CEIVED BY THE ASSESSEE-COMPANY FROM THE OTHER GROUP COMPANIES AND AFTER HAVING CONSIDERED ALL THE FACTS OF THE CASE AS WELL AS THE LEGAL POSITION, A CONSCIOUS DECISION WAS TAKEN BY HIM THAT THE PROVIS IONS OF SECTION 2(22)(E) WERE NOT APPLICABLE. HE CONTENDED THAT THE RE WAS THUS NO ERROR IN THE ORDERS OF THE ASSESSING OFFICER PASSED UNDER SECTION 153A/143(3) FOR BOTH THE YEARS UNDER CONSIDERATION AS ALLEGED B Y THE LD. PRINCIPAL CIT AND THE LD. PRINCIPAL CIT WAS NOT JUSTIFIED IN REVI SING THE SAME BY EXERCISING THE POWERS CONFERRED UPON HIM UNDER SECT ION 263. HE URGED THAT THE IMPUGNED ORDERS PASSED BY THE LD. PRINCIPA L CIT UNDER SECTION 263 MAY, THEREFORE, BE SET ASIDE AND THAT OF THE AS SESSING OFFICER PASSED UNDER SECTION 153A/143(3) BE RESTORED BACK. 5. THE LD. D.R., ON THE OTHER HAND, STRONGLY SUPPOR TED THE IMPUGNED ORDERS PASSED BY THE LD. PRINCIPAL CIT UNDER SECTIO N 263. HE CONTENDED THAT EVEN THOUGH THE RELEVANT DETAILS WERE AVAILABL E ON RECORD, THE ASSESSING OFFICER OUGHT TO HAVE MADE THE NECESSARY ENQUIRY TO ASCERTAIN THE APPLICABILITY OF SECTION 2(22)(E) TO THE LOAN A MOUNTS IN QUESTION RECEIVED BY THE ASSESSEE-COMPANY FROM THE OTHER GRO UP COMPANIES. HE SUBMITTED THAT THE QUERY RAISED BY THE ASSESSING OF FICER AND DETAILS FURNISHED BY THE ASSESSEE AS HIGHLIGHTED BY THE LD. COUNSEL FOR THE ASSESSEE WERE GENERAL IN NATURE AND THERE WAS NO SP ECIFIC ENQUIRY OR VERIFICATION MADE BY THE ASSESSING OFFICER REGARDIN G THE APPLICABILITY OF I.T.A. NO S. 546, 547 & 548/KOL/2018 ASSESSMENT YEARS: 2012-2013, 2013-14 & 2014-2015 M/S. GOVIND PROMOTERS PVT. LIMITED 6 SECTION 2(22)(E) TO THE LOAN AMOUNTS IN QUESTION TA KEN BY THE ASSESSEE FROM THE OTHER GROUP COMPANIES. AS REGARDS THE LEGA L POSITION POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE BY RELYING, INTER ALIA, ON THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF PRADIP KUMAR MALHOTRA (SUPRA), THE LD. D.R. CONTENDED THAT THERE IS NOTHING TO SHOW THAT THE ASSESSING OFFICER HAS TAKEN INTO CONSIDERA TION THIS LEGAL POSITION WHILE PASSING THE ORDER UNDER SECTION 153A/143(3). HE CONTENDED THAT THE ENQUIRY OR VERIFICATION ON THE ISSUE OF APPLICA BILITY OF SECTION 2(22)(E) AS REQUIRED IN THE FACTS AND CIRCUMSTANCES OF THE CASE THUS WAS NOT MADE BY THE ASSESSING OFFICER WHILE PASSING THE ORDERS UNDER SECTION 153A/143(3) AND SUCH LACK OF ENQUIRY OR VERIFICATIO N MADE THE SAID ORDERS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTE REST OF REVENUE WARRANTING REVISION UNDER SECTION 263 AS RIGHTLY DO NE BY THE LD. PRINCIPAL CIT. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALS O PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS DEMONSTRA TED BY THE LD. COUNSEL FOR THE ASSESSEE ON THE BASIS OF RELEVANT DOCUMENTA RY EVIDENCE PLACED IN THE PAPER BOOK, THE DETAILS OF UNSECURED LOANS TAKE N DURING THE YEARS UNDER CONSIDERATION BY THE ASSESSEE-COMPANY FROM TH E OTHER GROUP COMPANIES WERE CALLED FOR BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND THE SAME WERE DULY FURNI SHED BY THE ASSESSEE. EVEN THE DETAILS OF SHAREHOLDERS HOLDING MORE THAN 10% SHARES IN THE ASSESSEE-COMPANY WERE CALLED FOR BY THE ASSE SSING OFFICER AND THE SAME WERE DULY FURNISHED BY THE ASSESSEE. IN THE TA X AUDIT REPORTS FILED BY THE ASSESSEE-COMPANY ALONG WITH ITS RETURNS OF I NCOME, THE UNSECURED LOANS RECEIVED BY THE ASSESSEE-COMPANY DURING THE Y EARS UNDER CONSIDERATION FROM THE OTHER GROUP COMPANIES AND SQ UARED OFF IN THE SAME YEARS WERE DULY REFLECTED AND EVEN INTEREST PA ID THEREON WAS DULY SHOWN IN THE SAID TAX AUDIT REPORTS IN THE DETAILS OF PAYMENTS MADE TO RELATED PERSONS AS SPECIFIED IN SECTION 40A(2)(B). AS RIGHTLY CONTENDED BY THE LD. COUNSEL FOR THE ASSESSEE, ALL THE RELEVANT DETAILS TO ASCERTAIN THE APPLICABILITY OF SECTION 2(22)(E) TO THE LOAN AMOUN TS IN QUESTION TAKEN BY I.T.A. NO S. 546, 547 & 548/KOL/2018 ASSESSMENT YEARS: 2012-2013, 2013-14 & 2014-2015 M/S. GOVIND PROMOTERS PVT. LIMITED 7 THE ASSESSEE-COMPANY DURING THE YEARS UNDER CONSIDE RATION FROM THE OTHER GROUP COMPANIES THUS WERE EITHER AVAILABLE ON THE RECORD BEFORE THE ASSESSING OFFICER OR THE SAME WERE CALLED FOR B Y HIM DURING THE COURSE OF ASSESSMENT PROCEEDINGS BY RAISING SPECIF IC QUERIES AND AFTER APPLYING HIS MIND TO THE SAID DETAILS, A CONSCIOUS DECISION WAS TAKEN BY HIM AS REGARDS THE NON-APPLICABILITY OF SECTION 2(2 2)(E) TO THE LOAN AMOUNTS IN QUESTION WHILE COMPLETING THE ASSESSMENT UNDER SECTION 153A/143(3) OF THE ACT. IN OUR OPINION, IT, THEREFO RE, CANNOT BE SAID THAT THERE WAS AN ERROR IN THE ORDERS OF THE ASSESSING O FFICER IN NOT MAKING ANY ENQUIRY OR VERIFICATION ON THE ISSUE OF APPLICA BILITY OF SECTION 2(22)(E) TO THE LOAN AMOUNTS IN QUESTION AS ALLEGED BY THE LD. PRINCIPAL CIT AND THE REVISION UNDER SECTION 263 BY THE LD. P RINCIPAL WAS NOT CALLED FOR. 7. IT IS ALSO OBSERVED THAT INTEREST WAS PAID BY T HE ASSESSEE ON THE LOAN AMOUNTS IN QUESTION TAKEN FROM THE OTHER GROUP COMPANIES AND AS HELD BY THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF PRADIP KUMAR MALHOTRA (SUPRA), THE SAID LOANS GIVEN TO THE ASSES SEE-COMPANY BY THE OTHER GROUP COMPANIES AS A CONSEQUENCE OF FURTHER C ONSIDERATION, WHICH WERE BENEFICIAL TO THE SAID COMPANIES, CANNOT BE TR EATED AS DEEMED DIVIDEND UNDER SECTION 2(22)(E). AT THE TIME OF HEA RING BEFORE THE TRIBUNAL, THE LD. D.R. HAS NOT DISPUTED THIS LEGAL POSITION CITED BY THE LD. COUNSEL FOR THE ASSESSEE IN SUPPORT OF THE ASSESSEE S CASE THAT SECTION 2(22)(E) WAS NOT APPLICABLE TO THE LOAN AMOUNTS IN QUESTION RECEIVED BY THE ASSESSEE-COMPANY FROM THE OTHER GROUP COMPANIES . HE, HOWEVER, HAS CONTENDED THAT THERE IS NOTHING ON RECORD TO SHOW T HAT THIS LEGAL POSITION WAS SPECIFICALLY CONSIDERED BY THE ASSESSING OFFICE R WHILE COMPLETING THE ASSESSMENTS UNDER SECTION 153A/143(3) OF THE ACT. W E ARE UNABLE TO ACCEPT THIS CONTENTION OF THE LD. D.R. IN OUR OPINI ON, THE ASSESSING OFFICER IS NOT ONLY EXPECTED TO BE AWARE OF SUCH LEGAL POSI TION BUT IS ALSO DUTY- BOUND TO APPLY THE SAME WHILE COMPLETING THE ASSESS MENTS, ESPECIALLY WHEN IT IS PROPOUNDED BY THE HONBLE JURISDICTIONAL HIGH COURT. IN THE I.T.A. NO S. 546, 547 & 548/KOL/2018 ASSESSMENT YEARS: 2012-2013, 2013-14 & 2014-2015 M/S. GOVIND PROMOTERS PVT. LIMITED 8 PRESENT CASE, THE ASSESSING OFFICER THUS HAD NOT ON LY MADE THE ENQUIRY OR VERIFICATION AS REQUIRED IN THE FACTS OF THE CASE T O ASCERTAIN THE APPLICABILITY OF SECTION 2(22)(E) TO THE LOAN AMOUN TS RECEIVED BY THE ASSESSEE FROM THE OTHER GROUP COMPANIES, BUT A CONS CIOUS DECISION WAS ALSO TAKEN BY HIM KEEPING IN VIEW THE LEGAL POSITIO N THAT SECTION 2(22)(E) WAS NOT APPLICABLE TO THE LOAN AMOUNTS IN QUESTION RECEIVED BY THE ASSESSEE DURING THE YEARS UNDER CONSIDERATION FROM THE OTHER GROUP COMPANIES. IN OUR OPINION, THERE WAS THUS NO ERROR IN THE ORDERS OF THE ASSESSING OFFICER FOR THE YEARS UNDER CONSIDERATION PASSED UNDER SECTION 153A/143(3) OF THE ACT AS ALLEGED BY THE LD. PRINCI PAL CIT AND THE REVISION OF THE SAME UNDER SECTION 263 BY THE LD. P RINCIPAL CIT WAS NOT CALLED FOR. IN THAT VIEW OF THE MATTER, WE SET ASID E THE IMPUGNED ORDERS PASSED BY THE LD. PRINCIPAL CIT UNDER SECTION 263 A ND RESTORE THAT OF THE ASSESSING OFFICER PASSED UNDER SECTION 153A/143(3) OF THE ACT. 8. IN THE RESULT, ALL THE THREE APPEALS OF THE ASSE SSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON MAY 29, 2019. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE -PRESIDENT (KZ) KOLKATA, THE 29 TH DAY OF MAY, 2019 COPIES TO : (1) M/S. GOVIND PROMOTERS PVT. LIMITED, CONTINENTAL CHAMBERS, 4 TH FLOOR, 15A, HEMANTA BASU SARANI, KOLKATA-700 001 (2) PRINCIPAL COMMISSIONER OF INCOME TAX, CENTRAL, KOLKATA-2, AAYAKAR BHAWAN POORVA, 5 TH FLOOR, ROOM NO. 501, 110, SHANTI PALLY, KOLKATA-700 107 (3) COMMISSIONER OF INCOME TAX- , (4) THE DEPARTMENTAL REPRESENTATIVE (5) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.