TaxTMI 
TaxTMI 
2012 (8) TMI 582
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....en at the premises of Oberoi Group of assesses on 19-7-2007. In response to notice u/s 153A, the return was filed declaring total income of Rs. 4,24,37,950/-. However, the assessment was completed at an income of Rs. 4,93,33,790/- including addition of income from house property Rs. 83,32,258/-, under the normal provisions of the Act and at an income of Rs. 71,40,25,930/- u/s 115JB of the Act, vide order dtd. 24-12-2009 passed u/s 153 r.w.s. 143(3) of the Act. 3. On appeal, the ld. CIT(A) while sustaining the addition of share issue expenses Rs. 2,12,500/- deleted the addition made under the head income from house property Rs. 83,23,258/- and club expenses Rs. 5 lacs. 4. Being aggrieved by the order of the ld. CIT(A), the Revenue is in appeal before us by taking the following grounds of appeal:- "a. On the facts and circumstances of the case and in law, the CIT(A) failed to appreciate that the Annual Value as offered by the assessee was grossly understated and the A.O. was justified in determining Fair Market Value in terms of Sec. 23(1)(a) by re-computing annual letting value of the property of the basis of circumstantial evidenced. b. On the facts and circumstances of the cas....
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....Rs. 10,00,000/- and computed the income from house property as under:- Annual Letting out value Rs. 1,20,00,000/- Property tax paid (-) Rs. 96,774/- Rs. 1,19,03,226 Deduction u/s 24(a) of the I.T. Act 1961 @ 30% (-) Rs. 35,70,968 Total income in respect of property let out to APL Rs. 83,32,258/- ============= 6. On appeal the ld. CIT(A) following the decision of the Tribunal in DCIT v. Reclamation Realty India Pvt. Ltd. in ITA No. 1411/Mum/07 for A.Y. 2004-05 dtd. 26-11-2010, Hon'ble High Court decision in CIT v. Prabhabai Bansali (141 ITR 419 (Cal) & M.V. Sonavala v. CIT (177 ITR 246 (Bom) held that the addition cannot be made in respect of notional return under the head 'Income from House Property' and accordingly directed the A.O. to delete the addition. He also directed to reduce the permissible deduction u/s 24(a) of the Act by taking the revised annual value of the property. 7. At the time of hearing, the ld. D.R. supports the order of the A.O. 8. On the other hand, the ld. Counsel for the assessee, at the outset, submits that the issue is squarely covered in favour of the assessee by the decision of the Tribunal in assessee's own case and in other cases ....
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....for A.Y. 2004-05 ( -do- ) ITA No. 4309/Mum/2011 for A.Y. 2005-06 and ( -do- ) ITA No. 4334/Mum/2011 for A.Y. 2006-07. ( -do- ) 12. The common grounds No 'a' and 'b' taken by the Revenue in all these five appeals, except difference in amounts, taken from ITA No. 4331/M/2011 for A.Y. 2002-03 are as under: "a. On the facts and circumstances of the case and in law, the CIT(A) erred in holding that the provisions of section 2(22)(e) of the I.T. Act 1961 is not applicable in the case of assessee company without appreciating the facts that the deemed dividend has to be taxed on advances or loan to any concern as defined in Explanation 3(a) to section 2(22)(e), in which common shareholder is a member or a partner and such a shareholder has a substantial interest as defined in Explanation 3(b) of section 2(22)(e). b. On the facts and circumstances of the case and in law, the CIT(A) erred in deleting the addition of Rs. 74,06,226/- being deemed dividend within the meaning of section 2(22)(e) of the I.T. Act 1961." 13. The brief facts of the above issue are that from the balance sheet of the assessee as at 31-3-2002, the A.O. observed that the assessee has credited ....
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....care Private Limited (supra), the order passed by the ld. CIT(A) in deleting the addition be upheld. 17. We have carefully considered the submissions of the rival parties and perused the material available on record. We find that the facts are not in dispute inasmuch as it is also not in dispute that the assessee company is not holding any share in NDCPL i.e. neither the assessee company is a registered share holder nor beneficial share holder in the said company. 18. In Bhaumik Colour (P.) Ltd. (SB) (supra), it has been held (para 41, at page 27 of 118 ITD): "On the first question : Deemed dividend can be assessed only in the hands of a person who is a shareholder of the lender company and not in the hands of a person other than shareholder. On the second question: The expression 'shareholder' referred to in section 2(22)(e) refers to both a registered shareholder and beneficial shareholder. If a person is registered shareholder but not the beneficial shareholder then the provisions of section 2(22)(e) will not apply." 19. In CIT V/s Universal Medicare Private Limited (2010)324 ITR 263 (Bom), their Lordships after considering the aforesaid decision of the Special Bench of the....