9911796707
TMI Blog2014 (8) TMI 1066X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. 2. The only issue in this appeal of assessee is against the order of CIT(A) confirming the action of AO in treating the loan accepted by assessee from Mega Resources Ltd. as deemed dividend u/s. 2(22)(e) of the Act. For this, assessee has raised following three grounds: "1. For that in view of the facts and in the circumstances and the order of the AO dated 31.12.2010 u/s.263/251/143(3) being wholly bad, illegal and void abinitio as the AO completely failed to carry out the directions of the Hon'ble ITAT, Kolkata Bench - C correctly & properly and CIT(A) by his order dated 24.1 1.2011 having wrongly confirmed the said action of the AO, the order of the AO as well as the CIT(A) C-I are wholly bad, illegal and void ab initio and in vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , ITAT C-Bench, Kolkata, the entire order is bad illegal unjustified and uncalled for and is liable to be cancelled/ set aside. 3. For that in view of the facts and circumstances and in view of the facts and circumstances and in view of the such specific direction of the Hon'ble ITAT Bench-C and your petitioner company being registered shareholders of less than 10% paid up equity shares of MRL, provisions of section 2(22)(e) were not at all applicable and in view of the facts and circumstances it may kindly be held accordingly and the addition may kindly be deleted." 3. Briefly stated facts are that the assessee filed its return of income for the relevant assessment year2005-06 on 17.03.2006. Assessment was completed u/s. 43(3) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side u/s. 263 to be redone by the Assessing Officer as per law, after proper verification, and after affording a reasonable opportunity of being heard to the assessee." The revision order was confirmed by Tribunal but Tribunal directed the AO vide order dated 24.09.2010 in ITA No. 913/Kol/2010 and the relevant directions as noted in para 3 reads as under: "We may state that AO will specifìcally consider on the basis of register of share holding of MRL of the financial year relevant to assessment year under consideration and such documents as may be filed before him as to whether assessee is the registered shareholder as well as having beneficial interest therein or not and in case assessee is registered s shareholder but not the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00,000/- from M/s. Mega Resources Ltd. (PAN AADCM5397E) during the period relevant to the Assessment Year 2005-06 is treated as deemed dividend u/s. 2(22)(e) and Rs. 11,87,00,000/- is added back as deemed dividend." The AO treated the deemed dividend u/s. 2(22)(e) of the Act. Aggrieved, assessee preferred appeal before CIT(A). Before CIT(A), assessee specifically contended that in view of the decision of Special Bench of ITAT Mumbai in the case of Bhaumik Colour P. Ltd. (2009) 313 ITR 146 (AT) only the registered shareholding is to be considered for the purposes of considering loan to be treated as deemed dividend u/s. 2(22)(e) of the Act but CIT(A) confirmed the action of AO by observing as under: "4.4 The ground taken by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed nor any proof of revising the balance sheet filed before the Registrar of the Company has been filed. Taking all the facts into consideration the A.O has rightly rejected the certificate issued by the closely held company, M/s Mega Recourses Ltd that as per there records the total share holding of the assessee company is only 1099300/. Considering above it is said that the assessee has failed to establish that the share holding ín M/s Mega Recourses Ltd. was less than 10% . Accordingly addition of Rs. 11,87,00,000/ made by the AO under section 2(22)(e) of the Act is confirmed." Aggrieved, now assessee is in appeal before us. 4. We have heard rival submissions and gone through facts and circumstances of the case. Before us also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 10,99,300 in Mega Resources Ltd. and not 13,99,100 as alleged by the revenue. No doubt the total shareholding of the assessee in Mega Resources Ltd. is to the tune of 13,99,100 but registered shareholders are to the extent of 10,99,300. We have to see only the registered shareholding and not the beneficial shareholder. For this, the assessee has filed evidence before the lower authorities and even before us now. In such circumstances, this issue being covered by the Special Bench of this Tribunal, Mumbai Bench in the case of Bhaumik Colour P. Ltd., supra. Respectfully following the same, we delete the addition and reverse the orders of the lower authorities. 5. In the result, the appeal of the assessee is allowed. 6. Order pronounced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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