2025 (7) TMI 905

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....advocates appearing for the respective parties, the matter is taken up for final hearing today. 2. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the notice dated 26.03.2021 issued under section 148 of the Income Tax Act, 1961 (hereinafter referred to as 'the Act' for short). 3. Facts in brief are as under: 3.1 The petitioner is a Private Limited Company and filed its return of income for the Assessment Year 2016-17 on 17.10.2016 declaring total income of Rs. 5,84,250/-. The return was taken up for scrutiny. Notices under sec. 142(1) was issued on 6.8.2018. The assessment order was passed on 18.12.2018. 3.2. It is the case of the petitioner that the Company is amalgamated with Relit....

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....undry creditors. Further, CBDT vide Circular N.19/2017 dated 12.6.2017 has clarified that trade advances are not subject to Provision of Section 2(22)(e). Hence, the provision 2(22)(e) does not apply. 4.3 It was further submitted that it is clear that reasons are recorded on the basis of material filed during original assessment proceedings. Accordingly notice issued on the basis of facts, which are already considered and assessment order passed after considering all the aspects is clearly on the basis of change of opinion and hence liable to be quashed. 5. Per contra, Ms. Maithili Mehta, learned Senior Standing Counsel appearing for the revenue would support the notice. On the basis of affidavit-in-reply, she would contend that the basis....

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...."6.1 What is evident from the records too is that it was clearly pointed out that the assessee company is not a shareholder of GSEC Aviation Limited from whom the loan of Rs. 16,55,41,554/- has been received. As pointed out by the learned counsel for the petitioner, it is a settled position of law that where loan has been given by the Company to concern, wherein, the shareholder of the payer Company holds at least 20% of share carrying voting power, the said loan can be considered as dividend under section 2(22)(e) of the Act and not the concern to whom the loan has been given. From the annual accounts annexed to the petition, it is evident that a notice was given under Sec.142 of the Act, to which the petitioner had responded showing that ....

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....e assessee filed appeal which was dismissed by CIT(A) on 11th May 2006. The assessee filed Second Appeal which has been allowed by the Tribunal on 5th June 2009 and the Tribunal has hold that it was not the case of the deemed dividend and it was the case of the deposits. The Tribunal further recorded finding that it was not a loan given by Amigo Brushes Pvt Ltd. to the assessee company and it was inter-corporate deposits. However, we need not go into various questions raised by learned counsel for the parties as admittedly the assessee was not shareholder in the Amigo Brushes Pvt. Ltd. The Division Bench of this Court in Commissioner of Income Tax vs. Ankitach(P) Ltd. [(2012) 340 ITR 14]. The Delhi High Court has held that if the assessee c....