TMI Blog2020 (8) TMI 800X X X X Extracts X X X X X X X X Extracts X X X X ..... we decline to accept the aforesaid plea of the assessee as well as the additional evidence at this stage considering the fact that the assessee had never raised this issue at any stage before the Departmental Authorities and it requires investigation into fresh facts which were never part of record. The decisions relied upon by learned Authorised Representative, on careful examination, were found to be inapplicable to the facts of the present appeal, hence, there is no need to discuss them in detail. - ITA no.2845/Mum./2018, ITA no.3193/Mum./2018 - - - Dated:- 18-3-2020 - Shri Saktijit Dey, Judicial Member And Shri M. Balaganesh, Accountant Member For the Assessee : Shri Badresh Doshi For the Revenue : Shri Abhijit Patankar ORDER PER SAKTIJIT DEY. J.M. The captioned cross appeals arise out of order dated 22nd February 2018, passed by the learned Commissioner of Income Tax (Appeals) 33, Mumbai, pertaining to the assessment year 2014 15. 7. The common dispute arising in the aforesaid appeals relates to the addition made/deleted on account of deemed dividend under section 2(22)(e) of the Income Tax Act, 1961 (for short the Act ). 8. Brief facts ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Trading Pvt. Ltd., and deposited in the Bank account, a sum of ₹ 4,05,00,000, was paid to Vintotak Investments and a further sum of ₹ 4,50,71,119, was paid to Miramac Properties Pvt. Ltd. Whereas, neither the Assessing Officer nor the assessee has furnished any information to show whether the assessee has substantial interest in these two concerns. While observing that, in case, the assessee has a substantial interest in both these concerns, the amount in question would partake the character of deemed dividend under section 2(22)(e) of the Act, he directed the Assessing Officer to verify the actual facts and make the addition accordingly. As far as the balance amount is concerned, learned Commissioner (Appeals) held that since as per the bank account details, such amounts were paid to persons who are in no way connected to the assessee, it cannot be treated as deemed dividend under section 2(22)(e) of the Act. Being aggrieved with the aforesaid decision of learned Commissioner (Appeals), both the assessee as well as the Revenue are in appeal before us. 10. The learned Authorised Representative submitted, the bank accounts wherein the amounts received from M/s. Mapl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated profit. To substantiate the aforesaid claim, learned Authorised Representative sought permission of the Bench to furnish the financial statements of M/s. Maplewood Trading Pvt. Ltd., along with the return of allotment in Form no.PAS 3, as additional evidence. He submitted, since the earlier Counsel failed to bring these facts to the notice of the Departmental Authorities, on the advice of newly appointed Counsel, assessee seeks to file these documents as additional evidence. Thus, he submitted, assessee s claim may be verified with reference to the additional evidence. In support of his contention, learned Authorised Representative relied upon the following decisions: i) DCIT v/s Maipo India Ltd., [2008] 116 TTJ 791 (Del.HC); ii) CIT v/s Madhur Housing And Development Co., [2018] 401 ITR 152 (SC); and iii) Nandlal Kanoria v/s CIT, [1980] 122 ITR 405 (Cal.). 11. The learned Departmental Representative submitted, the facts on record clearly reveal that the assessee not only has substantial shareholding in the company which advanced the loan to his wife, but he was fully in control not only with the affairs of the company which advanced the loan, but also the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and no one else. The name of assessee s wife appearing as the first joint holder in the bank accounts is only a smokescreen created by the assessee to wriggle out of the rigors of section 2(22)(e) of the Act and to safeguard his interest. Therefore, in such circumstances, we have to look at the substance rather than the form. If the facts are analyzed in right perspective, it leaves no room for doubt that not only the assessee has total control over the affairs of the company which advanced the loan, but also in respect of the bank accounts. Therefore, the conditions of section 2(22)(e) of the Act are clearly attracted. 13. Having held so, now it is necessary to examine to what extent the loan advanced by the company can be treated as deemed dividend at the hands of the assessee. As could be seen, before the first appellate authority, the assessee had furnished the details of loan received in the bank account and its utilization. On analysis of the said details, it is very much clear that an amount of ₹ 53,10,000, has directly accrued to the benefit of the assessee. Therefore, the said amount has to be treated as deemed dividend at the hands of the assessee in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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