Assistant Commissioner of Income Tax, Nashik V. Vilas Rasiklal Shah, Nashik

ITA 789/PUN/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0657 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 11 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 03-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K VERMA
• Keywords: Valuation report; Deemed dividend; Commercial expediency
• Section: 2(22)(e)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E BEFORE SHRI R.S.SYAL, VP AND SHRI PARTHA SARATHI CHAUDHURY, JM / ITA NOS. 789 TO 791/PUN/2017 / ASSESSMENT YEARS : 2008-09, 2009-10 & 2011-12 THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-2, NASHIK. ....... / APPELLANT / V/S. SHRI VILAS RASIKLAL SHAH, 4 TH FLOOR, ABHYANKAR TOWER, M.G. ROAD, NASHIK- 411001. PAN : AFCPS6278M / RESPONDENT ASSESSEE BY : SHRI SANKET JOSHI REVENUE BY : SHRI M.K. VERMA / DATE OF HEARING : 28.03.2019 / DATE OF PRONOUNCEMENT : 28.03.2019 / ORDER PER PARTHA SARATHI CHAUDHURY, JM : THESE APPEALS PREFERRED BY THE REVENUE EMANATES FROM THE ORDER OF THE LD. CIT(APPEALS)-2, NASHIK DATED 02.01.2017 IN SEPARATE ORD ERS FOR THE ASSESSMENT YEARS 2008-09, 2009-10 AND 2011-12 AS PER GROUNDS OF APPEAL ON RECORD. 2 ITA NOS.789 TO 791/PUN/2017 A.YS. 2008-09, 2009-10 & 2011-12 THAT FOR ALL THE ASSESSMENT YEARS, THE REVENUE HAS CHA LLENGED DELETION OF ADDITION IN RESPECT OF DEEMED DIVIDEND U/S.2(22)(E) OF THE IN COME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. THESE CASES WERE HEARD TOGETHER. SINCE ISSUES COMMO N AND FACTS ARE SIMILAR, THESE CASES ARE BEING DISPOSED OF VIDE THIS CONSOLIDATED ORDE R. FOR THE SAKE OF CONVENIENCE, WE WOULD TAKE UP ITA NO.789/PUN/2017 AS LEA D CASE. 3. WITH REGARD TO THE ISSUE, DURING FIRST APPELLATE PROCEE DINGS, THE LD. CIT(APPEALS) HAS HELD AS UNDER: 9.3 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CA SE AND RIVAL CONTENTIONS. I FIND THAT THE IDENTICAL ISSUE HAS BE EN CONSIDERED BY ME IN THE APPELLATE ORDER DATED 30/06/2016 PASSED IN APPE LLANTS OWN CASE FOR A.Y.2012-13. AFTER DETAILED DISCUSSIONS, THE AB OVE ISSUE HAS BEEN DECIDED BY ME IN FAVOUR OF THE APPELLANT. THE RELEV ANT EXTRACT OF THE APPELLATE ORDER FOR A.Y. 2012-13 IS REPRODUCED HERE UNDER: 10. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CA SE AND THE RIVAL CONTENTIONS. ON PERUSAL OF THE SAME, IT HAS BEEN NO TICED THAT VEPL HAD OBTAINED SECURED LOAN FROM RELIGAIREFINVEST LTD . BY MORTGAGING THE RESIDENTIAL PROPERTY AND LAND OWNED BY THE APPELLANT. THE MARKET VALUE OF THE MORTGAGED PROPER TY AS PER VALUATION REPORTS DATED 15/12/2011 OBTAINED FROM TH E REGISTERED VALUER APPOINTED BY RELIGAIREFINVEST LTD . WAS RS.9,47,63,425/-. PRIOR TO THE SAME, VEPL HAD OBTAI NED LOAN FROM ICICI BANK IN JUNE 2007 AND THE ABOVE PROPERTIES OF THE APPELLANT INDIVIDUAL WERE ALSO MORTGAGED FOR OBTAINING THE SA ID LOAN FOR THE PURPOSES OF THE COMPANY. ON PERUSAL OF THE LEDGER E XTRACTS FROM 01/04/2007 TO 31/03/2012 ENCLOSED IN THE PAPER BOOK FILED BY THE APPELLANT, IT IS OBSERVED THAT THE ACCOUNT HELD BY THE APPELLANT WITH VEPL IS IN THE NATURE OF A RUNNING ACCOUNT, HO WEVER, THE NET POSITION THROUGHOUT THIS YEAR IS THAT THE APPELLANT OWES FUNDS TO VEPL, THE CLOSING BALANCE AS ON 31/03/2012 BEING RS.5,05,34,540/-. 10.1 THE LD. AR. FOR THE APPELLANT HAS EXPLAINED THAT SINCE THE ABOVE PROPERTY OF THE APPELLANT CARRYING HUGE MARKE T VALUE OF MORE THAN RS.9.47 CRS. WAS MORTGAGED BY HIM FOR THE PURPOSES OF THE OBTAINING LOAN FOR THE COMPANY, IT WAS DIFFI CULT FOR HIM TO RAISE FUNDS FOR HIS PERSONAL PURPOSES. WHEN THE APP ELLANT APPROACHED THE COMPANY FOR RELEASE OF HIS MORTGAGED PROPERTY, 'VEPL REALIZED THAT IT WAS COMMERCIALLY NOT FEASIBL E TO RELEASE THE PROPERTY AND HENCE, IT WAS MUTUALLY AGREED THAT VEP L WOULD LEND FUNDS TO THE APPELLANT AS AND WHEN REQUIRED. THE AR. HAS ACCORDINGLY SUBMITTED THAT THE ABOVE ADVANCES HAVE BEEN MADE BY VEPL TO THE APPELLANT AS A CONSEQUENCE OF THE CO MMERCIAL FAVOUR DONE BY THE APPELLANT FOR VEPL BY MORTGAGING HIS PERSONAL PROPERTY FOR OBTAINING FINANCE FOR THE COMPANY. THE CONTENTION OF 3 ITA NOS.789 TO 791/PUN/2017 A.YS. 2008-09, 2009-10 & 2011-12 THE APPELLANT IS THAT THE ABOVE ADVANCES MADE BY VI RAL ESTATES PVT. LTD. [VEPL] TO THE APPELLANT DIRECTOR ARE NOT GRATUITOUS ADVANCES AND THE SAME ARE MADE IN CONSIDERATION OF THE COMMERCIAL ADVANTAGE DERIVED BY THE COMPANY OUT OF MORTGAGING THE PROPERTY OF THE APPELLANT AND HENCE, SUCH ADVAN CES COULD NOT BE TREATED AS DEEMED DIVIDEND U/S. 2(22)(E) OF THE ACT. THE LEARNED AR. HAS RELIED UPON VARIOUS CASE LAWS IN SUPPORT OF THE ABOVE CONTENTION. 10.2 I FIND THAT SIMILAR ISSUE CAME UP FOR CONSIDERA TION BEFORE HONOURABLE CALCUTTA HIGH COURT IN THE CASE OF PRADE EP KUMAR MALHOTRA V. CIT [(2011)338 ITR 538]. IN THAT CASE, THE ASSESSEE HAD ALLOWED THE COMPANY [WHEREIN HE WAS A SUBSTANTI AL SHAREHOLDER] TO MORTGAGE HIS PROPERTY FOR ACQUIRING LOAN FROM BANK. WHEN THE ASSESSEE WAS IN NEED OF FUNDS, HE AP PROACHED THE COMPANY TO RELEASE THE MORTGAGE OR PURCHASE THE PROPERTY. THE COMPANY WAS UNABLE TO DO EITHER OF THE TWO AND HENCE, IT ADVANCED LOAN TO THE ASSESSEE. THE AO TREATED THE SAME AS DEEMED DIVIDEND U/S 2(22)(E) OF THE ACT. HONOURABLE ITAT UPHELD THE ACTION OF THE AO. AND THE ASSESSEE CARRIED THE ISSUE BEFORE HONOURABLE HIGH COURT. HONOURABLE COURT HELD THAT T HE PROVISIONS OF SECTION 2(22)(E) ARE ATTRACTED ONLY IN CASES WHE RE THE LOAN GIVEN BY THE COMPANY IS IN THE NATURE OF GRATUITOUS LOAN ADVANCED ONLY BECAUSE OF THE FACT OF THE ASSESSEE BEING A SUBSTAN TIAL SHAREHOLDER. THE COURT HELD THAT THE LOANS GIVEN FO R ANY FURTHER CONSIDERATION CANNOT BE TREATED AS DEEMED DIVIDEND WITHIN THE MEANING OF SECTION 2(22)(E). THE 'HEAD NOTES' OF THE ABOVE DEC ISION ARE REPRODUCED HEREUNDER: ' THE PHRASE 'BY WAY OF ADVANCE OR LOAN' APPEARING IN SUB-CL. (E) OF CL. (2) OF S. 2 MUST BE CONSTRUED TO MEAN THOSE ADVANCES OR LOANS WHICH A SHARE HOLDER ENJOYS FOR SIMPLY ON ACCOUNT OF BEING A PERSON WHO IS THE BENEFICIAL OWNER OF SHARES (NOT B EING SHARES ENTITLED TO A FIXED RATE OF DIVIDEND WHETHER WITH OR WITHOUT A RIGHT TO PARTICIPATE IN PROFITS) HOLDING NOT LESS THAN TEN P ER CENT OF THE VOTING POWER; BUT IF SUCH LOAN OR ADVANCE IS GIVEN TO SUCH SHAREHOLDER AS A CONSEQUENCE OF ANY FURTHER CONSIDERATION WHICH IS BENEFICIAL TO THE COMPANY RECEIVED FROM SUCH A SHAREHOLDER, IN SUCH CASE, SUCH ADVANCE OR LOAN CANNOT BE SAID TO A DEEMED DIVIDEND WITHIN THE MEANING OF THE ACT. THUS, GRATU ITOUS LOAN OR ADVANCE GIVEN BY A COMPANY TO THOSE CLASSES OF SHAREHOLDERS WOULD COME WITHIN THE PURVIEW OF S.2(22) BUT NOT THE CASES WHERE THE LOAN OR ADVANCE IS GIVEN IN RETURN TO AN ADVANTAGE CONFERRED UPON THE COMPANY BY SUCH SHAREHOLDER. IN THE PRESEN T CASE THE ASSESSEE PERMITTED HIS PROPERTY TO BE MORTGAGED TO THE BANK FOR ENABLING THE COMPANY TO TAKE THE BENEFIT OF LOAN AND IN SPITE OF REQUEST OF THE ASSESSEE, THE COMPANY IS UNABLE TO RELEASE THE PROPERTY FROM THE MORTGAGE. IN SUCH A SITUATION, FO R RETAINING THE BENEFIT OF LOAN AVAILED FROM THE BANK IF DECISION IS TAKEN TO GIVE ADVANCE TO THE ASSESSEE SUCH DECISION IS NOT TO GIVE GRATUITOUS ADVANCE TO ITS SHAREHOLDER BUT TO PROTECT THE BUSINESS INTEREST OF THE COMPANY. AUTHORITIES BELOW ERRED IN LAW IN TREA TING THE ADVANCE GIVEN BY THE COMPANY TO THE ASSESSEE BY WAY OF COMPENSATION TO THE ASSESSEE FOR KEEPING HIS PROPERTY AS MORTGAGE ON BEHALF OF THE COMPANY TO REAP THE BENEF IT OF LOAN AS DEEMED DIVIDEND WITHIN THE MEANING OF S.2(22)(E).CIT VS. CREATIVE DYEING & PRINTING (P) LTD. (2010) 229 CTR (DEL) 250: (2009) 30 DTR (DEL) 143 : (2009) 318 ITR 476 (DEL) AND CIT VS. NAQINDAS M. KAPADIA (1989) 75 CTR (BORN) 161 : (1989) 177,ITR 393 (BORN) RELIED ON.' 4 ITA NOS.789 TO 791/PUN/2017 A.YS. 2008-09, 2009-10 & 2011-12 10.3 I FIND THAT THE ABOVE DECISION HAS ALSO BEEN R ELIED BY THE APPELLANT BEFORE THE AO. HOWEVER, IN THE ASSESSMENT ORDER, THE LEARNED AO. HAS NOT BEEN ABLE TO DISTINGUISH THE ABOVE DECISION OF HONOURABLE HIGH COURT. IN MY CONSIDERED OPINION, THE RATIO LAID DOWN IN THE SAID DECISION IS SQUARELY APPLICABLE TO THE FACTS OF THE PRESENT CASE AND HENCE, THE ADDITION U/S 2(22)(E) OF RS. 2,48,73,753/- MADE BY THE AO. IS LIABLE TO BE DELETED. I FIND THAT IN SIMILAR SITUATIONS, THE SAME VIEW HAS BEEN REITERATED BY VARIOUS HONOURABLE TRIBUNALS BY FOLLOWING THE ABOVE DECISION OF HONOURABLE CALCUTTA HIGH COURT. I FIND THAT SIMILAR ISSUE HAD COME UP FOR CONSIDERATION BEFORE HONOURABLE ITAT, C HENNAI IN THE CASE OF ACIT V. SMT. G. SREEVIDYA REPORTED AT 138 ITD 427. IN THAT CASE, THE COMPANY HAD MADE ADVANCES TO THE ASS ESSEE WHICH WERE TREATED AS DEEMED DIVIDEND U/S 2(22)(E) BY THE AO. THE ASSESSEE CONTENDED THAT SHE HAD OFFERED COLLATE RAL SECURITY AND PERSONAL GUARANTEE FOR THE PURPOSES OF RAISING LOAN FOR THE COMPANY. IT WAS SUBMITTED THAT AT THE TIME OF EXTENDING SECURITY, IT WAS MUTUALLY AGREED THAT THE COMPANY WOULD LEND FUNDS TO THE ASSESSEE AS AND WHEN REQUIRED BY HER AND THAT IT WA S IN THIS BACKGROUND THAT THE COMPANY HAD MADE ADVANCES TO TH E ASSESSEE. THE CIT(A) DELETED THE ADDITION BY HOLDIN G THAT SUCH ADVANCES MADE OUT OF COMMERCIAL EXPEDIENCY DID NOT FELL WITHIN THE AMBIT OF 'LOAN OR ADVANCES' AS SPECIFIED IN SECTION 2(22)(E) . THE REVENUE CHALLENGED THE SAID DECISION BEFORE HONOURA BLE ITAT. DISMISSING THE APPEAL OF THE REVENUE, HONOURABLE ITAT HELD AS UNDER: '7. IN ORDER TO ATTRACT THE PROVISIONS OF SECTION 2 (22)(E), THE IMPORTANT CONSIDERATION IS THAT THERE SHOULD BE LOA N/ADVANCE BY A COMPANY TO ITS SHAREHOLDER. EVERY AMOUNT PAID MUST MAKE THE COMPANY A CREDITOR OF THE SHAREHOLDER OF THAT AMOUN T. AT THE SAME TIME, IT IS TO BE BORNE IN MIND THAT EVERY PAYMENT BY A COMPANY TO ITS SHAREHOLDERS MAY NOT BE LOAN/ADVANCE. IN THE PR ESENT CASE, THE AMOUNT WAS WITHDRAWN BY THE ASSESSEE FROM THE C OMPANY ONLY TO MEET HER SHORT TERM CASH REQUIREMENTS. BY V IRTUE OF OFFERING PERSONAL GUARANTEE AND COLLATERAL SECURITY FOR THE BENEFIT OF THE COMPANY, THE LIQUIDITY POSITION OF THE ASSESSEE HAD GONE DOWN. IN THE STRICT SENSE IF IT IS TO BE CONSTRUED THE AMOUNT FORWARDED BY THE COMPANY TO THE ASSESSEE WAS NOT IN THE SHAPE OF ADVANCES OR LOANS. THE ARRANGEMENT BETWEEN THE ASSE SSEE AND THE COMPANY WAS MERELY FOR THE SAKE OF CONVENIENCE ARISING OUT OF BUSINESS EXPEDIENCY. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IT IS NOT APPROPRIATE TO HOLD THAT THE AMOUNT WITHDRAWN BY THE ASSESSEE PARTAKES THE CHARACTER OF DEEMED DIVIDEND UNDER THE PROVISIONS OF SECTION 2(22)(E) OF THE ACT. 8. THE CASE OF THE ASSESSEE IS SQUARELY COVERED BY THE DIVISION BENCH JUDGMENT OF THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF PRADIP KUMAR MALHOTRA (SUPRA), WHEREIN THE FACTS WE RE SIMILAR TO THE FACTS OF THE INSTANT CASE. IN PRADIP KUMAR'S CASE ASSESSEE HAD SUBSTANTIAL HOLDING IN IN A PRIVATE COMPANY. TH E ASSESSEE PERMITTED HIS IMMOVABLE PROPERTY TO BE MORTGAGED TO THE BANK FOR ENABLING THE COMPANY TO TAKE THE BENEFIT OF LOAN. THE BOARD OF DIRECTORS OF THE COMPANY PASSED A RESOLUTION TO OBTAIN INTEREST FREE DEPOSIT UPTORS.50 LAKHS AS AND WHEN REQUIRED. THE ASSESSEE OBTAINED FROM THE COMPANY A SUM OF RS. 20,15,000/- BY WAY OF SECURITY DEPOSIT. OUT OF THIS AMOUNT, A SUM OF RS.2 0 LAKHS WAS RETURNED BY THE ASSESSEE TO THE COMPANY. THE ASSESS ING OFFICER ADDED THE SUM OF RS.20,75,000/- AS DEEMED DIVIDEND. THE 5 ITA NOS.789 TO 791/PUN/2017 A.YS. 2008-09, 2009-10 & 2011-12 HON'BLE HIGH COURT WHILE ALLOWING THE APPEAL OF THE ASSESSEE HELD THAT FOR RETAINING THE BENEFIT OF LOAN AVAILED OF F ROM THE BANK, IF DECISION WAS TAKEN TO GIVE ADVANCE TO THE ASSESSEE SUCH DECISION WAS NOT TO GIVE GRATUITOUS ADVANCE TO ITS SHAREHOLD ER BUT TO PROTECT THE BUSINESS INTEREST OF THE COMPANY. THE S UM OF RS.20,15,000/- COULD NOT BE TREATED AS DEEMED DIVID END. THE DIVISION BENCH OF THE HON'BLE CALCUTTA HIGH COURT F OLLOWED THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CAS E OF CIT VS. CREATIVE DYEING & PRINTING P. LTD. REPORTED AS 318 ITR 476(DEL). IN THE INSTANT CASE ALSO THE ASSESSEE WAS ALLOWED TO W ITHDRAW FUNDS FROM THE COMPANY AS PER REQUIREMENT FOR PERSO NAL PURPOSES AGAINST THE PERSONAL GUARANTEE AND THE COLLATERAL S ECURITY GIVEN BY HER TO FACILITATE HER AVAILING OF CREDIT FACILIT Y OF THE COMPANY. 9. IT IS A WELL SETTLED LAW ' THAT LOAN OR ADVANCE GIVEN TO A SHAREHOLDER BY A COMPANY IN WHICH PUBLIC IS NOT SUB STANTIALLY INTERESTED AND WHICH HAD ACCUMULATED PROFITS, THE A MOUNT ADVANCED AS LOAN TO SUCH SHAREHOLDER IS DEEMED TO B E DIVIDEND AS PER THE PROVISIONS OF SECTION 2(22)(E) OF THE AC T. HOWEVER, THE FACTS AND CIRCUMSTANCES OF EACH CASE HAVE TO BE SCR UTINIZED BEFORE APPLYING THE RATIO OF THE CASES HOLDING ABOVE WELL SETTLED LAW. IN THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE, JU DGMENTS RELIED UPON BY THE DR IN THE CASES OF SARADA P.(SUPRA), P. K. ABUBUCKER (SUPRA) AND TARULAUISHYAM (SUPRA) ARE NOT APPLICABL E. 10.4 I FIND THAT FOLLOWING THE ABOVE TWO DECISIONS OF HONORABLE CALCUTTA HIGH COURT AND HONORABLE ITAT, CHENNAI, HO NORABLE AMRITSAR TRIBUNAL HAS ALSO DECIDED THE ISSUE IN FAVOUR OF TH E ASSESSEE AND AGAINST THE REVENUE, ON SIMILAR FACTS INVOLVED IN THE CASE OF SHITAL KUMAR VIJ V. ACIT [ITA NOS.406/ASR/2 009J. IT IS FURTHER NOTICED THAT IDENTICAL VIEW HAS BEEN TAKEN BY HONORABLE TRIBUNALS ON SIMILAR FACTS IN THE FOLLOWING DECISIO NS RELIED UPON BY THE APPELLANT: A. PRAGTI AGARWAL V. ACIT [ITA NOS.92 TO 95 / IND/2009] B. NIMESHCHUNDRA V. VASHI V . DCIT [ITA NO.1610/AHD/2007] C. PUROSHOTTAM DAS MIMANI V. DCIT [ITA NO. 60 TO 62/KOL /2011] 10.5. THUS, RESPECTFULLY FOLLOWING THE CONSISTENT V IEW TAKEN BY HONORABLE COURTS IN THE DECISIONS CITED ABOVE, I AM OF THE CONSIDERED OPINION THAT THE ADVANCES MADE BY VIRAJ ESTATES PVT. LTD. TO THE APPELLANT ARE OUT OF COMMERCIAL EXPEDIE NCY AND HENCE, SUCH ADVANCES CANNOT BE TREATED AS DEEMED DIVIDEND U/S 2(22)(E) OF THE ACT. IN VIEW OF THE ABOVE DISCUSSION, THE LD . A.O. IS DIRECTED TO DELETE THE ADDITION OF RS.2,48,73,753/- MADE BY APPLYING THE PROVISIONS OF SECTION 2(22)(E) OF THE INCOME TAX AC T. 9.4. I FIND THAT THE FACTS IN THIS YEAR ARE IDENTIC AL TO THE FACTS INVOLVED IN A.Y.2012-13. ACCORDINGLY, I DO NOT FIND ANY REASON TO TAKE A DIFFERENT VIEW IN THIS YEAR. THEREFORE, FOLL OWING MY DECISION FOR A.Y.2012-13, I HOLD THAT THE ADDITION U/S.2(22) (E) OF RS.2,50,91,026/- MADE IN THIS YEAR IS NOT JUSTIFIED AND THE AO IS DIRECTED TO DELETE THE SAME. 4. AT THE TIME OF HEARING THE LD. AR OF THE ASSESSEE SU BMITTED THAT THE LD. CIT(APPEALS) HAS PROVIDED RELIEF TO THE ASSESSEE FOR ALL THE RELEVANT ASSESSMENT YEARS RELYING ON THE DECISION OF THE LD. CIT(A PPEALS) GIVEN IN 6 ITA NOS.789 TO 791/PUN/2017 A.YS. 2008-09, 2009-10 & 2011-12 ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2012-13. IN THAT DECISION FOR ASSESSMENT YEAR 2012-13, THE LD. CIT(APPEALS) HAS RELIED O N THE JUDGMENT OF THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF PRADEEP K UMAR MALHOTRA V. CIT [(2011) 338 ITR 538]. THE LD. AR FURTHER SUBMITTED T HAT EVEN THE PUNE BENCH OF THE TRIBUNAL HAS DISMISSED THE REVENUES APPEAL ON THIS ISSUE FOR THE ASSESSMENT YEAR 2012-13. 5. PER CONTRA, THE LD. DR HAS PLACED RELIANCE ON THE ORD ER OF THE ASSESSING OFFICER. 6. WE HAVE PERUSED THE CASE RECORDS AND HEARD THE R IVAL CONTENTIONS. WE HAVE ALSO CONSIDERED THE JUDICIAL PRONOUNCEMENTS PLACED B EFORE US. THAT ON ANALYZING THE LEGAL POSITION IN THIS CASE, WE FIND THAT ONLY GRIEVANCE OF THE REVENUE IS TO THE EXTENT OF DELETION OF DISALLOWANCE OF DEEM ED DIVIDEND U/S.2(22)(E) OF THE ACT. WE FIND THAT SIMILAR ISSUE HAD CROPPED UP FOR THE ASSESSMENT YEAR 2012-13 AND THE LD. CIT(APPEALS) IN THAT CASE OF THE ASSESSEE AFTER PLACING RELIANCE ON THE DECISION OF THE HON' BLE CALCUTTA HIGH COURT IN THE CASE OF PRADEEP KUMAR MALHOTRA V. CIT (SUPRA.) HAS PROVIDED RELIEF TO THE ASSESSEE. THEREAFTER, THE REVENUE HAD PREFE RRED AN APPEAL BEFORE THE TRIBUNAL WHEREIN THE CO-ORDINATE BENCH OF THE PUNE TRIBUNAL AFTER PLACING RELIANCE ON THE SAME JUDGMENT OF THE HON'BLE CALC UTTA HIGH COURT HAS UPHELD THE FINDINGS OF THE LD. CIT(APPEALS) AND DISMISSED THE REVENUES APPEAL. IN ALL THE ASSESSMENT YEARS UNDER CONSIDERATION BEFORE U S, THE LD. CIT(APPEALS) HAS PROVIDED RELIEF TO THE ASSESSEE FOLLOWING HIS OWN ORDER FOR THE ASSESSMENT YEAR 2012-13. 7. THE LD. AR OF THE ASSESSEE APPRISED THE BENCH THA T ON THE ISSUE, THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT IS THE ONLY DE CISION WHICH IS 7 ITA NOS.789 TO 791/PUN/2017 A.YS. 2008-09, 2009-10 & 2011-12 BEING TILL DATE FOLLOWED BY THE VARIOUS BENCHES OF THE INCOM E TAX APPELLATE TRIBUNAL AND THAT THERE HAS BEEN NO CONTRARY DECISION A GAINST THAT DECISION. HENCE, PLACING RELIANCE ON THE OBSERVATION OF THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF PRADEEP KUMAR MALHOTRA V. CIT (SUPRA.) IS ABSOLUTELY MANDATORY AND JUSTIFIED. IN VIEW OF THE CLEAR SETTLED LEGAL POSITION, WE DO NOT FIND ANY INFIRMITY WITH THE FINDINGS OF THE LD. CIT(APPEALS) IN HIS ORDERS FOR ALL THE ASSESSMENT YEARS BEFORE US AND THEREFORE, THESE ORDERS OF THE LD. C IT(APPEALS) ARE UPHELD AND RELIEF PROVIDED TO THE ASSESSEE IS SUSTAINED. 8. IN THE RESULT, APPEALS OF THE REVENUE FOR THE ASSESS MENT YEARS 2008-09, 2009-10 AND 2011-12 ARE DISMISSED. ORDER PRONOUNCED ON 28TH DAY OF MARCH, 2019. SD/- SD/- R.S.SYAL PA RTHA SARATHI CHAUDHURY VICE PRESIDENT JUDICIAL MEMBER / PUNE; / DATED : 28 TH MARCH, 2019. SB !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS)-2, NASHIK. 4. THE PR. CIT-2, NASHIK. 5. '#$ %%&' , ( &' , )*+ , / DR, ITAT, B BENCH, PUNE. 6. $,- ./ / GUARD FILE. // TRUE COPY // (0 / BY ORDER, %1 &+ / PRIVATE SECRETARY ( &' , / ITAT, PUNE. 8 ITA NOS.789 TO 791/PUN/2017 A.YS. 2008-09, 2009-10 & 2011-12 DATE 1 DRAFT DICTATED ON 2 8 .03 .2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 2 8 .03 .201 9 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER