9911796707
TMI Blog2012 (8) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... erred ignoring the "substance" over the "form" without appreciating the fact that the amount received by the assessee was shown as unsecured loan. 2. During hearing, we have heard Shri R.A. Verma, ld. Sr. DR and Shri Tribhuvan Sachdeva, ld. Counsel for the assessee. At the outset, it was asserted by the ld. Counsel for the assessee that the impugned issue is covered in favour of the assessee by the decision of the Tribunal, that too, in own case of the assessee for AY 2005-06. This factual matrix was not controverted by the Revenue. 3. We have considered the rival submissions and perused the material available on record. In view of the above assertion, we are reproducing hereunder the relevant portion of the order of the Tribunal dated 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion the assessee has filed agreement to sell dated 19.1.2004 before the Assessing Officer. However, the Assessing Officer was not convinced with the same and held that the transaction was in the nature of loans and advances. On finding that accumulated profit of the company was Rs. 58,43,165/- he restricted the addition u/s 2(22)(e) of the Act to the extent of accumulated profit i.e. Rs. 58,43,165/-. On appeal before the learned Commissioner of Income Tax (Appeals), the assessee contended that the amount was received as loans and advances. However, the learned Commissioner of Income Tax (Appeals) found that the accumulated profit of M/s Puzzling Equipref Services Private Limited was Rs. 57,676/- as on 31.3.2004 and Rs. 58,43,164/- as on 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eating the transaction as in the nature of loans and advances. The ground of the assessee is, therefore, allowed in his favour. Finally, the appeal of the assessee is partly allowed. Order pronounced in the open Court on 3rd January, 2012." 4. We find that vide order dated 3.1.2012 (supra), the Tribunal decided two issues pertains to the assessee. The issue towards addition made u/s 68 of the Act was decided against the assessee and the issue of deemed dividend u/s 2(22)(e) of the Act was decided in favour of the assessee. The ld. CIT(A) for AY 2005-06 directed that the addition to the extent of Rs. 57,57,676/- was required to be made in AY 2004-05 and the remaining amount of Rs. 85,488/- was added for AY 2005-06. The Tribunal perused the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sec. 2(22)(e) of the I.T. Act, 1961. The ratio laid down by Hon'ble Madras High Court in the case of CIT vs. F. Parveen (2008) 222 CTR (MAD) 639 wherein the Tribunal found that the amount was transferred by the company to its director in the normal course of business and not as a loan, the addition towards deemed dividend u/s 2(22)(e) of the Act was held to be rightly deleted, supports the case of the assessee. Identically, in another case before the Hon'ble Delhi High Court in CIT vs. Rajkumar (2009) 318 ITR 462 it was held that the trade advance which is in the nature of money transacted to give effect to a commercial transaction does not fall within the ambit of provisions of sec. 2(22)(e) of the Act. If the language used in sec. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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