SHRI MEHUL PRATAP ASNANI,AHMEDABAD vs. THE DY.CIT, CIRCLE-1, AHMEDABAD

The instant appeal filed by assessee is directed against the order passed by the Ld. CIT(A)-VI, Ahmedabad dated 09.01.2014 arising out of the order dated 25.10.2011 passed by the DCIT Circle-1, Ahmedabad under Section 143(3) r.w.s. 147 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) for Assessment Year 2006-07.

At the time of the hearing of the instant appeal the Ld. Advocate appearing for the assessee submitted before us that he does not want to proceed with the Ground No. 1 being the reopening of the case under section 147/148 of the Act. Thus the said ground is dismissed as not pressed.

The second ground being the addition of Rs. 57,41,511/- made by the authorities below holding that such payments from Biotech Vision Care Pvt. Ltd. to Biotech Opthalmic Pvt. Ltd. under the provision of Sec. 2(22)(e) is a deemed dividend in the hands of the assessee. In this regard, the Ld. AR relied upon the judgment passed by the Co-ordinate Bench in for A.Y. 2005-06, and ITA No. 2476/Ahd/2011 and 2451/Ahd/2011 both for A.Y. 2007-08, in assessee’s own case where the issue has been decided in favour of the assessee by dismissing the appeal preferred by the Revenue copy whereof has also been submitted before us.

However, the Ld. Representative of the Department failed to controvert such contentions made by the Ld. Counsel appearing for the assessee.

We have heard the respective parties and we have also perused the relevant materials available on record including the judgment passed by the Co- ordinate Bench on the identical issue. The relevant portion thereof is as follows:- “8. On due consideration of the above facts, we are of the view that order of the Special Bench in the case of ACIT vs. Bhaumik Colours p. Ltd. (supra) has been upheld by the Hon’ble Bombay High Court. Similar view has been taken by the Hon’ble jurisdictional High Court in the case of CIT vs. Daisy Packers Pvt. Ltd., in Tax Appeal No. 212 of 2010. Almost, a large number of Hon’ble High Courts are unanimous on this issue viz. CIT vs. Universal Medicare P. Ltd. 324 ITR 263 and CIT vs. MCC Marketing P. Ltd., 343 ITR 350. Hon’ble Karnataka High Court in the case of CCCIT-III vs. Sarva Equity P. Ltd. (supra), Hon’ble jurisdictional High Court in the case of CIT vs. Daisy Packers Pvt. Ltd. (supra). Though, the Hon’ble Supreme Court has admitted SLP against the decision of the Honble Karnataka High Court, but the decision of the Hon’ble jurisdictional High Court and other Hon’ble High Court have not been reversed by the Hon’ble Supreme Court. Respectfully following the decisions of the Hon’bl e High Courts as well as order of the Special Bench of the Tribunal cited supra, we are of the view that “BOPL” is not a shareholder of the lender company and the assessee has not taken any loan. Therefore, the alleged loan cannot be treated as deemed dividend in the hands of the assessee. We allow this ground of appeal in both these appeals of the assessee and delete the addition. Consequently, appeal of the Revenue is dismissed.”

In the result, assessee’s appeal is allowed.