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2015 (6) TMI 63 - AT - Income TaxDeemed dividend u/s 2(22)(e) - CIT(A) deleted the addition on the ground that the loan has not been received by the assessee but by M/s Oryx Fisheries Pvt. Ltd. - Held that:- Since the assessee is a share holder of the lending company and also having a substantial interest in the borrowing company, therefore, the condition as prescribed u/s 2(22)(e) are satisfied to include the payment in question in the ambit of dividend tobe taxed in the hands of the assessee. We do not agree with the contention of Ld. Authorized Representative that only a proportionate of the amount of loan received by the borrowing company can be assessed as dividend in the hands of the assessee to the extent of his share holding in the borrowing company due to the simple reason that as per provisions of section 2(22)(e) the two conditions are required to be fulfilled viz. the person having not less than 10% of voting power in the lending company and a substantial interest in the borrowing concern. Both these conditions are satisfied, therefore, in the absence of any such provision of proportionate addition nothing can be read in between the unambiguous language of the provision of section 2(22)(e). Further it is not the case of more than one share holder complying the conditions of having not less than 10% voting power in the lending company and also having substantial interest in the borrowing company. From perusal of share holding pattern at page 141 of the paper book, we find that only the assessee is holding 15% of the voting power in the lending company and 45% of voting power in the borrowing company and no other person/share holder is common other than the assessee. Therefore, there is no question of any proportionate addition when the assessee is the only share holder who fulfills the condition prescribed u/s 2(22)(e). The decision relied upon by the Ld. Authorized Representative in the case of Shri Subrata Banik Vs. CIT (2014 (1) TMI 928 - ITAT KOLKATA ) is not applicable to the facts of the present case rather the said decision is on the question of change of opinion while exercising the jurisdiction/revisional powers u/s 263 of the Income Tax Act. - Decided in favour of revenue.
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