TMI Blog2011 (11) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid judgment fully applies to the present case. - Decided against the Revenue. - ITA NO. 599 OF 2011 - - - Dated:- 21-11-2011 - SHRI SANJIV KHANNA AND SHRI R.V. EASWAR, JJ. Represented by: Shri Sanjeev Sabharwal for the Appellant. JUDGMENT R.V. Easwar, J. - The Revenue has sought to raise the following questions as substantial questions of law in this appeal filed u/s.260A of the Income Tax Act, 1961 ("Act" for short ) against the order of the Income Tax Appellate Tribunal ("Tribunal") dated 13th August 2010 in ITA No.1430/Del./2010: "2.1 Whether provisions of section 2(22)(e) were correctly invoked by the Assessing officer when the director of the company is holding more than 20% share in both the donor do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voking the said section. 4. The Revenue filed an appeal before the Tribunal which, following the order of the Special Bench (supra), held that the view taken the CIT(A) was correct. The appeal of the revenue was thus dismissed. 5. We find that the matter is now concluded by the judgment of a Division Bench of this Court delivered on 11th May, 2011 in the case of CIT v. Ankitech (P.) Ltd and the connected appeals. A copy of the judgment has been filed before us. We have carefully gone through the same. After an elaborate discussion of the issue, and the case-law on the subject, the Division Bench has held that an assessee who was not a shareholder of the company from which he received a loan or an advance cannot be treated as covered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 2(22)(e) of the Act. We have to keep in mind that this legal provision relates to "dividend". Thus, by a deeming provision, it is the definition of dividend which is enlarged. Legal fiction does not extend to "shareholder". When we keep in mind this aspect, the conclusion would be obvious, viz., loan or advance given under the conditions specified under section 2(22)(e) of the Act would also be treated as dividend. The fiction has to stop here and is not to be extended further for broadening the concept of shareholders by way of legal fiction. It is a common case that any company is supposed to distribute the profits in the form of dividend to its shareholders/members and such dividend cannot be given to non-members. The second ..... X X X X Extracts X X X X X X X X Extracts X X X X
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