Shri Mehul Pratap Asnani, Ahmedabad V. The Dy.CIT, Circle-1, Ahmedabad

ITA 693/AHD/2014

• Counselvise Citation: [2019] 114 COUNSELVISE.COM (IT) 6201 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-09-2019
• Assessment Year: 2006-2007
• Appeal Filed On: 07-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K DEV
• Assessee Lawyers: P M MEHTA
• Keywords: Deemed dividend
• Section: 143(3); 2(22)(e); 2

Judgement Text

, A- IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER . ITA NO. 693/AHD/2014 / ASSTT. YEAR: 2006-07 MEHUL PRATAP ASNANI 4, GARDEN ENCLAVE, OPP. LAW GARDEN, ELLISBRIDGE, AHMEDABAD PAN:ACM PA6 996 R VS. DCIT CIRCLE-1, AHMEDABAD / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI P. M. MEHTA, AR REVENUE BY : SHRI S. K. DEV, SR. DR ' #$% /DATE OF HEARING : 05/09/2019 &' $% /DATE OF PRONOUNCEMENT: 19/11/2019 () / O R D E R PER MADHUMITA ROY- JM : THE INSTANT APPEAL FILED BY ASSESSEE IS DIRECTED AG AINST THE ORDER PASSED BY THE LD. CIT(A)-VI, AHMEDABAD DATED 09.01.2014 AR ISING OUT OF THE ORDER DATED 25.10.2011 PASSED BY THE DCIT CIRCLE-1, AHMED ABAD UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (HERE INAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2006-07. 2. AT THE TIME OF THE HEARING OF THE INSTANT APPEAL THE LD. ADVOCATE APPEARING FOR THE ASSESSEE SUBMITTED BEFORE US THAT HE DOES NOT WANT TO PROCEED WITH THE GROUND NO. 1 BEING THE REOPENING OF THE CA SE UNDER SECTION 147/148 OF THE ACT. THUS THE SAID GROUND IS DISMISSED AS NOT PRESSED. ITA NO. 693/AHD/2014 A.Y. 2006-07 2 3. THE SECOND GROUND BEING THE ADDITION OF RS. 57,4 1,511/- MADE BY THE AUTHORITIES BELOW HOLDING THAT SUCH PAYMENTS FROM B IOTECH VISION CARE PVT. LTD. TO BIOTECH OPTHALMIC PVT. LTD. UNDER THE PROVI SION OF SEC. 2(22)(E) IS A DEEMED DIVIDEND IN THE HANDS OF THE ASSESSEE. IN T HIS REGARD, THE LD. AR RELIED UPON THE JUDGMENT PASSED BY THE CO-ORDINATE BENCH I N ITA NO. 2475/AHD/2011 FOR A.Y. 2005-06, AND ITA NO. 2476/AHD/2011 AND 245 1/AHD/2011 BOTH FOR A.Y. 2007-08, IN ASSESSEES OWN CASE WHERE THE ISSU E HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY DISMISSING THE APPEAL PRE FERRED BY THE REVENUE COPY WHEREOF HAS ALSO BEEN SUBMITTED BEFORE US. 4. HOWEVER, THE LD. REPRESENTATIVE OF THE DEPARTMEN T FAILED TO CONTROVERT SUCH CONTENTIONS MADE BY THE LD. COUNSEL APPEARING FOR THE ASSESSEE. 5. WE HAVE HEARD THE RESPECTIVE PARTIES AND WE HAVE ALSO PERUSED THE RELEVANT MATERIALS AVAILABLE ON RECORD INCLUDING TH E JUDGMENT PASSED BY THE CO- ORDINATE BENCH ON THE IDENTICAL ISSUE. THE RELEVAN T PORTION THEREOF IS AS FOLLOWS:- 8. ON DUE CONSIDERATION OF THE ABOVE FACTS, WE ARE OF THE VIEW THAT ORDER OF THE SPECIAL BENCH IN THE CASE OF ACIT VS. BHAUMIK COLOU RS P. LTD. (SUPRA) HAS BEEN UPHELD BY THE HONBLE BOMBAY HIGH COURT. SIMILAR V IEW HAS BEEN TAKEN BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CI T VS. DAISY PACKERS PVT. LTD., IN TAX APPEAL NO. 212 OF 2010. ALMOST, A LARGE NUMBER OF HONBLE HIGH COURTS ARE UNANIMOUS ON THIS ISSUE VIZ. CIT VS. UNIVERSAL MEDI CARE P. LTD. 324 ITR 263 AND CIT VS. MCC MARKETING P. LTD., 343 ITR 350. HONBLE KA RNATAKA HIGH COURT IN THE CASE OF CCCIT-III VS. SARVA EQUITY P. LTD. (SUPRA), HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. DAISY PACKERS PVT. LTD. (SUPRA) . THOUGH, THE HONBLE SUPREME COURT HAS ADMITTED SLP AGAINST THE DECISION OF THE HONBLE KARNATAKA HIGH COURT, BUT THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT AND OTHER HONBLE HIGH COURT HAVE NOT BEEN REVERSED BY THE HONBLE SUPREME COURT. RESPECTFULLY FOLLOWING THE DECISIONS OF THE HONBL E HIGH COURTS AS WELL A S ORDER OF THE SPECIAL BENCH OF THE TRIBUNAL CITED SUPRA, WE ARE OF THE VIEW THAT BOPL IS NOT A SHAREHOLDER OF THE LENDER COMPANY AND THE ASSESSEE HAS NOT TAKEN ANY L OAN. THEREFORE, THE ALLEGED LOAN CANNOT BE TREATED AS DEEMED DIVIDEND IN THE HANDS O F THE ASSESSEE. WE ALLOW THIS GROUND OF APPEAL IN BOTH THESE APPEALS OF THE ASSES SEE AND DELETE THE ADDITION. CONSEQUENTLY, APPEAL OF THE REVENUE IS DISMISSED. ITA NO. 693/AHD/2014 A.Y. 2006-07 3 6. IN THE ABSENCE OF ANY CHANGED CIRCUMSTANCES, RES PECTFULLY RELYING ORDER PASSED BY THE CO-ORDINATE BENCH AS MENTIONED HEREIN ABOVE WE FIND NO REASON TO ALLOW SUCH ADDITION AGAINST THE ASSESSEE. HENCE , THE SAME IS DELETED. 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. [ORDER PRONOUNCED IN THE COURT ON 19-11-2019.] SD/- SD/- ( WASEEM AHMED ) ( MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 19/11/2019 TANMAY TRUE COPY ()$*+,(+ /COPY OF THE ORDER FORWARDED TO : () ' / BY ORDER - / . (DY./ASSTT. REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION : 05-09-2019 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER. : 06-09-2019 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P.S./P.S : -11-2019 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT. : -11-2019 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER : 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P.S./P.S. : -11-2019 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK. : 19-11-2019 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK. : 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER. : 10. DATE OF DESPATCH OF THE ORDER : 1. / THE APPELLANT 2. / / THE RESPONDENT. 3. ' 0 / CONCERNED CIT 4. ' 0 ( ) / THE CIT(A) 5. +12 , / DR, ITAT, 6. 234# / GUARD FILE.