2015 (10) TMI 177

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....e sake of convenience and brevity are disposing off the appeals through common & consolidated order. For the sake of convenience, we are taking ITA No. 5690/Mum/2011 as the lead case. ITA No. 5690/Mum/2011: Asst. year 2008-09: Dept Appeal : 3. The following grounds have been raised by the department: "1 a) Whether on the facts and circumstances of the case, the Ld. CIT(A) has erred in holding that the provisions of sec 2(22)(e) of IT Act, 1961 is not applicable in the case of assessee company without appreciating the facts that the deemed dividend has to be taxed on advance 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 substantia....

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....conclusion, "it is an undisputed fact that appellant M/s Mantri Power Ltd. is not a shareholder of the lender company M/s Sunil Mantri Realty Ltd. the appellant filed a list of shareholders of M/s Sunil Mantri Realty Ltd., which evidences the fact that the appellant/assessee company is not holding any shares of M/s Sunil Mantri Realty Ltd., such fact had also been accepted by the Ld AO at page of the assessment order...". 7. The CIT(A), on the above finding of fact, deleted the addition as made. 8. Against this decision of the CIT(A), the department is now before the ITAT. 9. Before us, the DR relied on the order of the AO and AR relied on the facts as noted by the CIT(A) to delete the addition. 10. We have heard the rival contentions a....

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....n 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) Whether on the facts and circumstances of the case, and in law, the Ld. CIT(A) has erred in deleting the addition made u/s 2(22)(e) of Rs. 37,31,757/- by relying upon the judgment in the case of Bhaumik Color Pvt Ltd 313 ITR 146 and Universal Medicare Pvt Ltd (2010) 324 ITR 264 (Bom), while these decision relied upon are in contravention to the amendment made in section 2(22)(e) by Finance Act, 1987. 2. The Appellant craves to leave to add, to amend and/or to alter any of the grounds of appeal, if need be. 3. The A....

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....22. Before us, the DR relied on the order of the AO and AR relied on the facts as noted by the CIT(A) to delete the addition. 23. We have heard the rival contentions and pursued the orders of the revenue authorities. 24. The basis of the decision arrived at by the CIT(A) is the undisputed fact, acknowledged by the AO that the assessee is not a shareholder of SMRL. In such a case import of provisions of section 2(22)(e) does not hold ground. For this, we may gainfully place reliance on the decision of ACIT vs Bhaumic Colour Pvt. Ltd. reported in 118 ITD 1 (Mum SB). Though the assessee has placed reliance of a number decisions of various fora, we, on the basis of the facts, are of the view that there is no infirmity in the order of the CIT(....