TMI Blog2021 (7) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... Reddy , Member (J) For the Appellant : S. Rama Rao For the Respondents : P. Rohit Mujumdar ORDER Laxmi Prasad Sahu, Member (A) 1. These two appeals filed by the two assessees are directed against CIT(A) - 10, Hyderabad's separate orders for AY 2010-11 involving proceedings u/s. 143(3) rws 147 of the Income Tax Act, 1961; in short the Act . As the facts and grounds are identical in these appeals, they were clubbed and heard together and therefore a common order is passed for the sake of convenience. Therefore, the decision taken in ITA No. 364/Hyd/2017 shall mutatis-mutandis apply to other appeal in ITA No. 365/Hyd/2017. 2. Briefly the facts as culled out from ITA No. 364/Hyd/2017 are that the assessee Dr. Sri Naresh Kumar Sekhar engaged in providing infertility services, filed his return of income for the AY 2010-11 on 28/03/2011 declaring income of ₹ 6,37,330/-, which was processed u/s. 143(1) of the Act. A survey was conducted in the premises of M/s. Kiran Infertility Centre Pvt. Ltd., on 22/10/2013 and during the survey proceedings, it was noticed that the assessee being a shareholder holding 53% shares along with his spouse holding 42% shares ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the F.Y. 2009-10 (in which the assessee is a Director), there is an opening balance of ₹ 8,063.25(Dr.) and there were payments from 01.04.2009 to 15.03.2010 (relevant to the Asst. Year 2010-11) which is in appeal for an amount of ₹ 28,31,234.50 and there is a credit of ₹ 20 lakhs on 01.04.2009 towards advance for hospital building. After giving credit for this advance, the total debit till 15.03.2010 are more by ₹ 8,31,234.50. Similarly, an amount of ₹ 4,36,061 I - was debited on 31.03.2010 towards construction and finally there is a debit balance of ₹ 3,13,358/-. These amounts were advanced in addition to ₹ 27,50,000/- to the assessee and considered by the Assessing Officer for assessment is s. 2(22)(e) of the I.T. Act. After considering the remuneration paid to the Directors and hospital rent, still there is an excess payment of ₹ 3,05,295.50. As these amounts were not towards any dues to the assessee i.e., by way of hospital rent, remuneration etc., they are clearly in the nature of advance and liable to be included as deemed dividend as per the provisions of Section 2(22)(e) of the I.T. Act. 4. Aggrieved by the order of CIT( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A) as cited supra. 7.1. Before us, the assessee has raised a legal ground for reopening of assessment u/s. 147/148 of the Act as ground No. 3, which was also raised before the CIT(A) and CIT(A) dismissed the same as not pressed by observing as under at para 7 of his order: I. Ground no. 2 is with regard to the initiation of proceedings u/s. 147 of the I.T. Act, 1961. In the written submissions filed on 23.11.2015, nothing is mentioned about this ground of appeal: Even in the statement of facts nothing is mentioned about the issue of notice U/s. 148. Even during the course of hearing on 23.11.2015 no submission was made. Therefore, this ground of appeal is dismissed as not pressed. 7.2. We have also gone through the written submissions of the assessee placed before us at pages 142 to 156 of the paper book. There is no iota of any discussion with regard to challenging of reopening of assessment. The challenging of reopening is also not tenable because the assessing officer had tangible materials before reopening the case which was found during the course of survey operation U/s 133(A) of the Income tax Act. 1961. In the opinion of the assessing officer there was a rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvances or loans, which a shareholder enjoys for simply on account of being a partner, who is the beneficial owner of shares, 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 shareholder, in such case, such advance or loan cannot be said to be deemed dividend within the meaning of the Act. It was held that gratuitous loan or advance given by a Company to those classes of shareholders thus would come within the purview of section 2(22)(e) 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 case of ACIT -vs.- M/s. Zenon (India) Pvt. Limited, a loan taken by the assessee was treated by the Assessing Officer as deemed dividend under section 2(22)(e), but the ld. CIT(Appeals) did not approve the action of the Assessing Officer after having noticed that interest at the rate of 9% per annum was paid by the assessee on such loan, which, according to him, was a consideration received from her shareholders, which was beneficial to the Company and the order of the ld. CIT(Appeals) giving relief to the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
