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2015 (9) TMI 1003 - ITAT MUMBAI

2015 (9) TMI 1003 - ITAT MUMBAI - TMI - Deemed dividend u/s. 2(22)(e) - CIT(A) deleted the additions - Held that:- The opening balance of ₹ 5,35,396 is receivable by assessee from the said company as on 1st April 2006 and to the extent amount received back cannot be added as deemed dividend u/s 2(22)(e) of the Act as it is the return of loan given by assessee to Koradia Construction Private Limited. The assesee has produced statement of account as well bank statement of the assessee to pro .....

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t:- Though the order of CIT(A) is short on details, so however, the factual matrix which has been brought out by the assessee, does not justify any interference in the ultimate conclusion drawn by the CIT(A). Moreover, we find that the assessee had brought to the notice of the Assessing Officer all the facts by way of a written communication dated 25/11/2009, copy of which has also been placed in the paper book at pages 110 to 111. Therefore, it is not a case where any fresh facts are being plea .....

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HRI G.S. PANNU AND SHRI SANJAY GARG, JJ. For The Revenue: Shri S.P. Walimbe For The Assessee : Shri Vimal Punmiya ORDER PER G.S. PANNU, ACCOUNTANT MEMBER The present appeal preferred by the Revenue is directed against the impugned order dated 29th October 2010, passed by the learned Commissioner (Appeals)-20, Mumbai, for the assessment year 2007-08. The Revenue has taken following Grounds of appeal:- 1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in grantin .....

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o reasonable cause. 2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition of ₹ 8,59,873/- in respect of income from house property despite the evidence on record that the assessee had not disclosed the rental income relating to all the properties owned by her, namely, Flat no. C- 402 & C-403 as well as Gala NO.G-05 at Sampada. 3. The appellant prays that the order of the CIT(A) be set aside on the grounds mentioned above and that .....

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eal. We are, accordingly, narrating the facts, as they appear in the appeal in ITA no. 8542/Mum./2011, for assessment year 2006-07. The sole dispute in this appeal is with regard to the direction of the CIT(A) in upholding the penalty levied by the Assessing Officer under section 271(1)(c) of the Act. 2. Facts in brief:- The assessee is a beneficial shareholder M/s. Koradia Construction Pvt. Ltd., holding 50% of shares. The assessee has taken loan of ₹ 78,10,000/-, on various dates from th .....

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er, the first appellate authority gave relief of ₹ 5,35,396/-, on account of opening debit balance and another debit of ₹ 4,75,000/-. Being aggrieved by the relief given by the learned CIT(A), the Revenue is in appeal before the Tribunal. 4. The learned Departmental Representative, relied upon the orders of Assessing Officer and contended before us that the Assessing Officer has rightly made addition of the impugned sum and CIT(A) erred in giving relief to the tune of ₹ 12,10,3 .....

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were made during the year by the assessee to Koradia Construction Pvt. Ltd. on 3rd August 2006 of ₹ 4,75,000 which amount of ₹ 4,75,000 was received back on 18th August 2006. Similarly he contended that the opening balance of ₹ 5,35,396 is receivable by assessee from the company as on 1st April 2006 and to the extent amount received cannot be added as it is the return of loan given by assessee to Koradia Construction Private Limited and there is no receipt to that extent which .....

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the assessee during the impugned assessment year, the receipt of ₹ 58,00,000, was on account of advance for the purchase of property. This has already been considered by the Tribunal and has deleted vide its order in ITA No.3/Mum./2011 while for balance amount of ₹ 7,99,604/- has been confirmed by Tribunal in the afore-stated order to be treated as income as deemed dividend u/s 2(22)(e) of the Act. 6. We have heard the rival contentions and have perused the material available on reco .....

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l in the afore-stated order to be treated as income as deemed dividend u/s 2(22)( e) of the Act. The balance amount of ₹ 1210396.00 comprises assessee's opening balance of ₹ 5,35,396(Debit) as on 1st April 2006 which is the amount receivable by assessee from Koradia Construction Pvt. Ltd. in which assessee holds 50% shares, while further payments were made during the year by the assessee to Koradia Construction Pvt. Ltd. on 3rd August 2006 of ₹ 4,75,000 which amount of S .....

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0,000 as the salary from Koradia Construction Pvt. Ltd., which has already been offered for taxation by the assessee in the return of income filed for the impugned year. Thus, in view of above we hold that CIT(A) has rightly deleted the addition to the tune of ₹ 12,10,396 and we uphold the same. Thus, the Revenue appeal fails on this ground. 7. Ground no.2, relates to deletion of addition of ₹ 8,59,873, on account of income from house property. 8. The Assessing Officer observed that .....

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expected to be let out from year to year be deemed to be the income from house property for the said year and hence, the Assessing Officer made addition of ₹ 85,98,873, as the income from house property. 9. Aggrieved by the order of the Assessing Officer, the assessee filed appeal before the first appellate authority wherein the learned CIT(A) deleted the addition merely on the findings that this addition is baseless and the presumptious. However, there are no concrete finding by the lear .....

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x of the case supports his ultimate conclusion that the impugned additions are unsustainable. In this context additions made by the Assessing Officer and the corresponding factual matrix is tabulated as under: S.No. Addition amount Basis of the Assessing Officer Comments of the assessee 1. 3,85,273 Details of properties as per documents submitted in A.Y 2005-06 & A.Y 06-07 These are the address of old tenant and old properties. Additions have been made purely on presumptions. 2. 1,00,800 Pro .....

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ssing Officer assume that C-403 is also not Sop and computed deemed rent. 3. 2,73,000 Gala No.5 - Sampada is let out to the same party as i.e. Bianco textiles to whom pressman House was given on rent. Gala No.5 Sampada is the property owned by the assessee and the same is let out to Bianco Textiles whose registered office is at Pressman House . Therefore, in computation in address of tenant Presman House were mention. Howeve,r The Ld. Assessing Officer has wrongly held Pressman House is another .....

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facts and held that flat C-402, Gokul Divine is given on rent and not Khokhani Bhavan and computed the notional rent income for the property which is given on rent and already offered for tax. As can be seen from the above facts and comments, the Ld. AO has grossly misunderstood the facts and made the additions purely on presumptions. In the return of income, the assessee has mentioned the address of C-402, Gokul Divine for the rental income received from M/s Sagar Constructions and M/s Koradia .....

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