TMI Blog2018 (2) TMI 2043X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court referred to hereinabove. This is why shareholder now, post amendment, has only to be a person who is the beneficial owner of shares. One cannot be a registered owner and beneficial owner in the sense of a beneficiary of a trust or otherwise at the same time. It is clear therefore that the moment there is a shareholder, who need not necessarily be a member of the Company on its register, who is the beneficial owner of shares, the Section gets attracted without more. To state, therefore, that two conditions have to be satisfied, namely, that the shareholder must first be a registered shareholder and thereafter, also be a beneficial owner is not only mutually contradictory but is plainly incorrect. Also, what is important is the addition, by way of amendment, of such beneficial owner holding not less than 10% of voting power. We are prima facie of the view that the Ankitech judgment [ 2011 (5) TMI 325 - DELHI HIGH COURT] itself requires to be reconsidered, and this being so, without going into other questions that may arise, including whether the facts of the present case would fit the second limb of the amended definition clause, we place these appeals before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d given interest-free loans and advances of ₹ 3,84,17,356/-to its sister concerns and other related parties. Further, the appellant had given ₹ 4,30,59,985/- to M/s Sanchit Securities Pvt. Ltd. as advance against shares. It is held by the AO held that the interest in respect of this advance is not related to the project of the appellant and therefore, the same is not an allowable expenditure. Thus he held interest in respect of the total amount of ₹ 8,14,77,341/-(₹ 3,84,17,356/- plus ₹ 4,30,59,985/-) as not allowable. The appellant had claimed interest of ₹ 56,79,022/- in respect of secured loans of ₹ 13,79,80,794/-. Therefore, the AO disallowed proportionate amount of interest of ₹ 33,53,450/- [(₹ 56,79,022/- x ₹ 8,14,77,341/-)/₹ 13,79,80,794/-]. Thus he allowed the balance amount of interest of ₹ 26,25,572/- to be capitalized. 4. Aggrieved by the order of the AO, the appellant filed an appeal before the Ld. CIT(A). We find that the CIT(A) agreed with the reasons given by the AO and dismissed the appeal. 5. Before us, the Ld. counsel of the appellant submits that the AO has not properly examined the nexu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d (Rs.) Aniya Investment Pvt. Ltd. 37,339/- 81,95,000 Kan H Lakhani 92.3% 37,339/- M.K. Infin Pvt. Ltd. 10,60,296/- 30,40,000/- Kan H. Lakhani 90% 10,60,296/- Rambo Investment Finance Pvt. Ltd. 28,034 49,46,500 Kan H Lakhani 97.5% 28,034/- Total 11,25,669/- The AO relying on the CBDT Circular No. 495 dated 22.09.1987 and the order of the ITAT F Bench, Mumbai dated 11.08.2009 in the case of M/s UnisolInfraservices Pvt. Ltd. made an addition of the above amount of ₹ 11,25,669/- as deemed dividend u/s 2(22)(e) of the Act. 10. Aggrieved by the order of the AO, the assessee filed an appeal before the Ld. CIT(A). We find that the Ld. CIT(A) has restricted the addition to the accumulated reserve of ₹ 10,60,296/-. 11. Before us, the Ld. counsel of the assessee relies on the decision in CIT v. Ankitech (P.) Ltd. (20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d thereafter, also be a beneficial owner is not only mutually contradictory but is plainly incorrect. Also, what is important is the addition, by way of amendment, of such beneficial owner holding not less than 10% of voting power. This is another indicator that the amendment speaks only of a beneficial shareholder who can compel the registered owner to vote in a particular way, as has been held in a catena of decisions starting from Mathalonev. Bombay Life Assurance Co. Ltd., [1954] SCR 117. 19. This being the case, we are prima facie of the view that the Ankitech judgment (supra) itself requires to be reconsidered, and this being so, without going into other questions that may arise, including whether the facts of the present case would fit 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. In view of the above, we direct the AO to wait and follow the decision as per para 19 of the above judgment of the Hon ble Supreme Court. 14. In the result, the appeal is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r statistical purposes. 21. The 2nd ground raised by the appellant is against the order of the Ld. CIT(A) confirming the treatment given by the AO of unsecured loans of ₹ 62,51,154/- as deemed dividend u/s 2(22)(e) and adding the same to the total income of the assessee. 22. In a nutshell, the facts are that the AO having verified shareholding pattern of the appellant and the lenders found that Shri Kan H. Lakhani was holding 49.7% shares in the appellant-company. The shareholding of Shri Kan H. Lakhani in the companies who had given loans are as under: Name of lender Reserves (Rs.) Loan amt received during the year (Rs.) Common share holder % of holding Amount deemed dividend (Rs.) Aniya Investment Pvt. Ltd. 1,99,60,432 50,00,000 Kan H Lakhani 92.3% 50,00,000 M.K. Infin Pvt. Ltd. 12,51,154 35,30,000 Kan H. Lakhani 90% 12,51,154 Rambo Investment Finance Pvt. Ltd. 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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