TMI Blog2016 (3) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... for any interference. - Decided in favour of assessee - ITA No. 1658/Kol/2012 - - - Dated:- 20-1-2016 - N. V. Vasudevan, JM And M. Balaganesh, AM For the Appellant : Shri Amitava Roy, JCIT, Sr. DR For the Respondent : Shri V N Dutta, Adv ORDER Per N. V. Vasudevan, JM This is an appeal by the Revenue against the order dated 13.08.2012 of CIT(A)-VIII, Kolkata relating to A.Y.2009-10. 2. The grounds of appeal raised by the Revenue reads as follows :- (i) On the facts and in the circumstances of the case, Ld. CIT(A) has erred in deleting the addition of ₹ 69,46,102/- as deemed dividend u/s. 2(22)(e) . (ii) Ld. CIT(A) has erred in accepting without assigning any reason the assessee's submission that the assessee had received 20,000 shares transferred to his account from N.K. Credits Holding Pvt. Ltd. on 30.08.2008, in spite of the fact that the Annual return submitted before MCA which, being a legal document and created by the company of which the assesse is the Managing director having his full administrative control, is a self sufficient and self evidencing document, reflects that the assesse had received 20,000 shares transferred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of advance or loan to a shareholder, being a person who is the beneficial owner of shares (not being shares entitled to a fixed rate of dividend whether with or without a right to participate in profits) holding not less than ten per cent of the voting power, or to any concern in which such shareholder is a member or a partner and in which he has a substantial interest (hereafter in this clause referred to as the said concern) or any payment by any such company on behalf, or for the individual benefit, of any such shareholder, to the extent to which the company in either case possesses accumulated profits. 4. According to the AO since the Assessee held 10% of the paid up share capital and thereby 10% of the voting power, the provisions of Sec.2(22)(e) of the Act would be attracted in respect of the loan or advance availed by the Assessee from GCP. In response to the query raised by the AO in this regard the assessee submitted that a sum of ₹ 1 crore on 30.06.2008 had been repaid by the assessee on the very next day to GCP i.e. 07.07.2008 without utilization. It was submitted that the amount in question cannot be considered as loan or advances within the meaning of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Annual Return submitted before MCA on 02.11.2008, the date of registration of transfer of shares was wrongly mentioned as 30.04.2008 instead of 30.08.08. 5.2. It was further submitted that having learnt of the said mistake from the certified copy of the said Annual Return issued by the A.O. to the Assessee, GCP took immediate steps to rectify the same by submitting a Revised Annual Return on 05.09.2011 to the MCA along with a covering letter dt. 02.09.2011 explaining the facts already stated earlier, that the date of transfer of relevant shares was not 30.04.2008 but 30.08.2008 and as such GCP was filing a Revised Annual Return, rectifying the said mistake. A copy of the said covering letter dated 02.09.2011 of GCP was filed before CIT(A). The said Revised Annual Return had been submitted on 05.09.201. Copy of receipt dated 05.09.2011 of filing the said Revised Annual Return after paying fee of ₹ 5000/- was also filed before CIT(A). 5.3. It was reiterated by the Assessee that the issue had arisen because the Assessing Officer did not inform the Assessee that he had downloaded the Assessee's said Annual Return and had found that the appellant held 88,300 shares i.e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2008. The CIT(A) therefore concluded that there was legal transfer of shares only on 30.8.2008 on which date on the basis of the supporting evidence the shares stood registered in the name of the Assessee on 30.8.2008. The CIT(A) also held that incorrect mention of the crucial date as 30.4.2008 in the annual return filed by GCP initially did not falsify the documents held by the Assessee as per requirement of the Company Law. 5.8. For the above reasons CIT(A) was of the view that the addition made u/s 2(22)(e) of the Act cannot be sustained. 5.9. CIT(A) also held that since the money in question remanded with the assessee only for one day and was returned to GCP without any utilisation it cannot be treated as advance or loan within the meaning of section 2(22)(e) of the Act and came to the aforesaid conclusion. CIT(A) placed reliance on the decision of ITAT Mumbai Bench in the case of Praveen Bhimshi Chheda Shiv Sadan vs DCIT 11 ITR 705 (Mumbai) wherein it was held that the provision of section 2(22)(e) of the Act cannot be attracted where the transaction was circuitous transaction and the money which initially belonged to the company was returned to it on the very same day. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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