TMI Blog2019 (7) TMI 1596X X X X Extracts X X X X X X X X Extracts X X X X ..... alf of the company to reap the benefit of a loan, it could not be treated as deemed dividend within the meaning of Sec.2(22)(e) of the Act. In the present case, nothing has been brought on record to show that the amounts received by the assessee was compensation for keeping his property on mortgage on behalf of the company to reap the benefit of a loan. In fact, the facts in the present case clearly show that the assessee has been drawing funds in the form of loans for earlier years also. Decision of the Hon ble Calcutta High Court has no application in the facts of the assessee s case. Further, no fresh facts have been brought out by the assessee to dislodge the findings arrived at by the co- ordinate Bench of this Tribunal in the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse of the assessment noticed that the assessee had received amounts from M/s.Chroma Print India Pvt. Ltd., when he was having debit balances, to the extent of ₹ 14,48,685/- on various dates. Consequently, the AO had invoked the provisions of Sec.2(22)(e) of the Act and brought the same to tax as the assessee was shareholder and was having controlling interest in the company also. It was a submission that the Ld.CIT(A) had followed the decision of the Hon ble Bombay High Court in the case of CIT vs. P.K.Badiani reported in 76 ITR 369 (Bom) and upheld the findings of the AO. It was a submission that for the immediately preceding assessment year being the AY 2010- 11, the co-ordinate Bench of this Tribunal in the assessee s own case i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 2(22)(e) of the Act is applicable to the amount received by the assessee from the said company and in this regard, we do not find any infirmity in the order of the CIT(Appeals) . The various case laws relying by the ld.A.R have no application to the facts of the case. As in this case, there is no Board Resolution passed by the company to give money to the assessee. Further, ld.A.R made a plea that under the scheme of amalgamation M/s.Mind Ware Pvt Ltd., was amalgamated with M/s.Chroma Print India Pvt Ltd. appointment date was 01.04.2009. The balance in the name of assessee on the said date in the books of account of M/s.Mind Ware Pvt Ltd., was to be considered as balance in the books of account of the amalgamated company on the appointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion that the phrase by way of advance or loan appearing in sub-clause (e) must be / construed to mean those advances or loans which a share holder enjoys for simply on account of 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; but if such loan or advance is given to such share holder as a consequence of any further consideration which is beneficial to the company received from such a share holder, in such case, such advance or loan cannot be said to a deemed dividend within the meaning of the Act. Thus, for gratuitous loan or advance given by a company to those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing funds in the form of loans for earlier years also. This being so, clearly, the decision of the Hon ble Calcutta High Court has no application in the facts of the assessee s case. Further, no fresh facts have been brought out by the assessee to dislodge the findings arrived at by the co- ordinate Bench of this Tribunal in the assessee s own case for the AY 2010-11. This being so, respectfully following the decision of the coordinate Bench of this Tribunal in the assessee s own case for the immediately preceding assessment year, referred to supra, the findings of the Ld.CIT(A) on this issue stands confirmed. 9. In the result, the appeal filed by the assessee is dismissed. Order pronounced in the Open Court on the 03rd day of July, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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