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TMI Blog2021 (8) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... company from its group company i.e. M/s. Trivedi Enterprises Pvt. Ltd. (TEPL) 2. On the facts and circumstances of the case and in law, the learned CIT (A) failed to appreciate the fact that Appellant is not the shareholder of the TEPL, therefore, section 2(22)(e) cannot be invoked in the case of the Appellant. 3. The Ld.. CIT(A) erred in directing the Assessing officer to pass two different orders giving effect to the CIT(A) order, which is a unique methodology unknown in law. 4. On the facts and circumstances of the case and in law, the learned CIT (A) erred in disallowing a sum of Rs. 10,000/- under section 14A of the Income Tax Act, 1961. 5. On the facts and circumstances of the case and in law, the learned CIT (A) erred in disa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not satisfied. He held as under:- "In this case, all the conditions specified in section 2(22)(e) of the Act are satisfied and therefore, the provisions of this section are squarely attracted. In view of the clear position In law and the C.B.D.T. circular quoted above, the loans accepted by the assessee company are treated as deemed dividend u/s. 2(22)(e) of the I.T. Act. The deemed dividend would be limited to the extent of loan accepted during the year of account or the accumulated profit available in the Reserves & Surplus of the lender company, whichever Is less. In this case, the gross receipt of loan by the assessee from M/s. Trivedi Enterprises Pvt. Ltd. is Rs. 1,05,00,000/- and the profit and loss a/c appropriation reported by M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mb of the amended definition, whereas the present case refers to the first limb, for the simple reason that the word "shareholder" in both limbs would mean exactly the same thing. This is for the reason that the expression "such shareholder" in the second limb would show that it refers to a person who is a "shareholder" in the first limb. 18. This being the case, we are of the view that the whole object of the amended provision would be stultified if the Division Bench judgment were to be followed. Ankitech's case (supra), in stating that no change was made by introducing the deeming fiction insofar as the expression "shareholder" is concerned is, according to us, wrongly decided. The whole object of the provision is clear from the Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jit the second limb of the amended definition clause, we place these appeals before the Hon'ble Chief Justice of India in order to constitute an appropriate Bench of three learned Judges in order to have a relook at the entire question. 20. Ordered accordingly." 5.4.6 The same issue came up before the Hon'ble ITAT, ' A' Bench, Mumbai in ITA No. 7765/Mum/2011 in the case of M/s. Apurva Developers Pvt. Ltd. vs. ITO for A.Y. 2005-06. In that case, the Hon'ble ITAT, 'A' Bench, Mumbai has directed the AO to "wait and follow the decision as per Para 19 of the above judgment of the Hon'ble Supreme Court." Taking a cue from the order of the Hon'ble ITAT, I direct the AO to follow the decision of the Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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