AJAY BAKLIWAL,KOTA vs. ACIT, CENTRAL CIRCLE, KOTA, KOTA

3. Succinctly, the fact as culled out from the records is that a search & seizure operation under section 132(1) of the Act was carried out on 07.09.2017 at the various premises of ‘Resonance Group, Kota’ to which the assessee belongs. Several persons / premises were covered under that search and in that process cash, jewellery and other documents found and seized from some persons residence and business premises and the case of assessee was also covered by that search proceeding. Consequent to that search action, the case of the assessee was centralized to Central Circle-Kota by the Principal. Commissioner of Income-tax, Kota vide his order dated 12.10.2017.

3.1 Assessee is an individual and derives income from business or profession and other sources. As the case was covered by search 05.07.2018 requiring the assessee to file his return of income on 11.08.2018. In response the assessee filed his return of income declaring total income of Rs. 53,45,920/-. There is difference of Rs. 10/- between ITR filed under section 153A and 139 of the I.T. Act, 1961.

3.2 Earlier the assessee had filed his return of income u/s 139 of the Act on 30.09.2012 at the total income of Rs. 53,45,910/- and assessed u/s 143(3) at the total income of Rs. 81,36,160/- and after appeal effect u/s 250 total income of the assessee was finally determined at Rs. 68,93,354/-.

Thereafter notice u/s 148 was issued on 18.03.2017. The proceeding u/s 147 was abated vide order dated 27.12.2017.

3.3. Notice u/s 143(2) of Act was issued on 11.09.2018 which was duly served. Further, notice under sub section (1) of Section 142 of the Act was issued on 30.11.2018 along with a questionnaire attached to that notice as Annexure-A requiring certain details / information, which was served upon the assessee. In response to that, the assessee furnished the desired details / information / documents / which were examined with respect to claims made in return of income. Further, notice under sub section (1) of Section 142 of the Act was issued on 29.08.2019 and served to the assessee through speed post due to change of incumbent as per section the assessee was also observed and examined thoroughly.

3.4 While proceeding so initiated ld. AO while going through the balance sheet as on 31.03.2012 of Millenium Technocrat Colonisers Pvt Ltd, noted that the said company has shown loan & advance given at Rs. 6,76,000/-to Nav Bharat Nirman Co. and Rs. 2,65,50,500/- to Vinarma Entreprises and Nav Bharta Nirman Co. The assessee is one of the directors of the above company and he has substantial interest in the concern to which advances were made, as M/s Nav Bharat Nirman Co. is a proprietary concern of Shri Ajay Bakliwal and he is also a partner in M/s Vinarma Enterprises and Nav Bharat Nirman Co. Hence, consider that for those transactions provisions of section 2(22)(e) are applicable on the advances so given for an amount of Rs. 2,72,26,500/-. On that observation ld. AO issued a show cause notice to the assessee on 14.12.2019. The assessee submitted a reply on 20.12.2019, wherein he stated that these transactions are business transactions between the group companies having similar nature of business, hence provisions of section 2(22)(e) were not applicable. Ld. AO considered the reply of the assessee but found not satisfactory and thereby he quoted the provision of section 2(22)(e) of the Act and stated that since the assessee is director in Millenium Technocrat Colonisers Pvt Ltd holding in Joint venture M/s Vinarma Entreprises and Nav Bharat Nirman Co., the company in which the assessee is director has provided loans to the joint venture and proprietor concern in which he is partner and proprietor himself respectively. These transaction were in violation of provision of section 2(22)(e) of the Act and to support that view ld. AO relied on the decision of CIT vs Mukundray K Shah [2007] 160 Taxman 276 (SC) considered that the loan provided by the company at Rs. 2,72,26,500/- (6,76,000 + 2,65,50,500) requires to be added in the total income of the assessee as deemed dividend as per provision of section 2(22)(e) of the Act.

4. Feeling dissatisfied with that order of assessment the assessee preferred an appeal before the ld. CIT(A) who has disposed off the appeal of the assessee by making the following observation:

Finding of ld. CIT(A) on the technical ground raised by the assessee 4.7 I have considered the facts of the case and written submissions of the appellant as against the observations/findings of the AO in the assessment order for the year under consideration. The contentions/submissions of the appellant are being discussed and decided as under:- The issues raised by the appellant are discussed and decided in following paragraphs:- The appellant raised the issue in this ground that Proceeding initiated under section 147/148 is unlawful and illegal:- The AO on this issue reported that the original return of the assessee was filed on 30.09.2012 declaring total income of Rs. 45,45,920/-. The assessed income was Rs. 69,93,354/- u/s 250 of the IT Act vide order dated 24.11.2016.

Ajay Bakliwal vs. ACIT Later, the audit objection/observations were raised by the Internal Audit Party vide Audit memo No. 39 dated 08.12.2015 in the case of M/s Millenium Technocrat Colonizers Pvt. Ltd., for the A.Y 2012-13. The IAP vide their para no. 2 of observation, mentioned that "the assessee has shown loan & advance given at Rs.6,76,000/- to Nav Bharat Nirman Co. and Rs 2,65, 50,500/- to Vinamra Enterprises and Nav Bharat Nirman Co, as per balance sheet as on 31.03.2012. Directors of the assessee company have substantial interest in the concern to which advance was given. Hence provision of section 2(22)(e) may applicable on such payments."

On the basis of such observation (Mentioned as above), the then AO i.e. ITO,W-1(1), Kota had given his findings that "the assessee is one of the director of the above company holding 25.93% of shares and he has substantial interest in the concern to which advances were given. Thus the applicability of provision of section 2(22)(e) of the Income-tax Act, 1961 for the said transactions seems to be acceptable.

Accordingly, necessary permission for taking remedial action u/s 147 in the case of Shri Ajay Bakliwal the director of M/s Millenium Technocrat Colonizers Pvt. Ltd. was obtained from the competent authority

Further the case of the assessee was transferred to the then AO i.e. ACIT, Circle-1, Kota. Further, the then AO ie. ACIT, Circle-1, Kota had issued notice u/s 148 of the IT Act, 1961 on 18.03.2017 after recording the reason & necessary approval from the competent authority.

4.7.1 Assessee failed to disclose true & correct facts during the course of original assessment proceedings

The appellant has stated that notice u/s 148 could not be issued on the same set of circumstances which already stood considered in the assessment completed u/s 143(3) on 31.03.2015.

On perusal of the assessment order, it is observed that the issue related to deemed dividend was not examined by the AO. The information which was available with the AO was made available by the audit party in the case of other assessee. The assessee has not disclosed these facts that the concerns where he is having substantial interest received loan from the Company M/s Millenium Technocrat Colonizers Pvt. Ltd. where he is having shareholding of 25.93%. The appellant has not established the fact by way of some note to the account that though he was liable for deemed dividend but because of the reasons or legal basis the deemed dividend is not offered for taxation as per law. The assessee instead did not disclose this fact in the return of Income. Hence, the conclusion of the AO that the assessee failed to disclose true & correct fact during the course of assessment proceedings is found to be correct and upheld.

Hon'ble High Court Of Gujarat in the case of Dishman Pharmaceuticals & Chemicals Ltd. v. Deputy Commissioner of Income-tax (OSD) (No. 1) [2013] 30 taxmann.com 67 (Gujarat)/[2012] 346 ITR 228 (Gujarat)/[2012] 253 CTR 306 (Gujarat)(01-03-2011) held that If upon further inquiry by the Assessing Officer, such details could be gathered and the nature of payment received by the assessee from SBL could be ascertained, to find out whether the same should be treated as 'deemed dividend' under section 2(22)(e) or not, the same, would not satisfy, the requirement of fully and truly disclosing all material facts necessary for assessment, particularly viewed from the expression given in Explanation 1 to section 147, which provides, inter alia, that production before the Assessing Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within meaning of section 147. By simply stating that the assessee-company held certain shares in SBL, the duty to truly and fully disclose all material facts necessary for assessment of the income, was not discharged; particularly viewed from the Explanation to section 147.

In the present case also the duty to truly and fully disclose all material facts necessary for assessment of the income, was not discharged, particularly viewed from the Explanation to section 147. The relevant part of the decision along with head notes is reproduced as under-

"II. Section 147 of the Income-tax Act, 1961-Income escaping assessment -Non disclosure of primary facts Assessment year 2003-04 - Where during original assessment proceedings, assessee did not disclose that it was holding more than ten per cent of shareholding of company 'SBL' which had advanced certain amount to it, Assessing Officer was justified in reopening assessment beyond period of four years to tax said amount as deemed dividend under section 2(22)(e) [In favour of revenue] The Assessing Officer reopened the assessment for relevant assessment year on the ground that during the assessment proceedings of the assessment year 2006-07, it was seen that the amounts given by company SBL to the assessee were in the nature of loan transactions on which section 2(22) (e) was clearly applicable; that on a perusal of the accounts of the assessee it was seen that the assessee held 22.3 per cent shareholdings of SBL and for relevant year also, the assessee had taken loan from SBL; and that on that basis the Assessing Officer had reason to believe that income in the form of deemed dividend as per section 2(22)(e) had escaped assessment. Held that the fact necessary to ascertain whether payment in question could be and should be treated as 'deemed dividend under section 2(22)(e) was whether the assessee was holding shares of not less than 10 per cent of the voting power in SBL. From the return filed and the documents annexed with the retum, nowhere it could be ascertained what was the holding of the assessee-company (in terms of voting power) in SBL. If upon further inquiry by the Assessing Officer, such details could be gathered and the nature of payment received by the assessee from SBL could be ascertained, to find out whether the same should be treated as "deemed dividend under section 2(22)(e) or not, the same, would not satisfy, the requirement of fully and truly disclosing all material facts necessary for assessment, particularly viewed from the expression given in Explanation 1 to section 147, which provides, inter alia, that production before the Assessing Officer of account books of other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within meaning of section 147. By simply stating that the assessee-company held certain shares in SBL, the duty to truly and fully disclose all material facts necessary for assessment of the income, was not discharged; particularly viewed from the Explanation to section 147. The reasons recorded and communicated to the assessee sufficiently and clearly laid down the foundation for reopening of the assessment on the ground of the assessee not having truly and fully disclosed all the material facts. Therefore, reopening of assessment was justified."

The ITAT Mumbai Bench 'I' in the case of ITL Fabrics (P.) Ltd. v. Assistant Commissioner of Income-tax [2013] 33 taxmann.com 385 (Mumbai)/[2012] 19 ITR(T) 499 (Mumbai)[21-09-2012] held that as per the Explanation to section 147, mere production before the Assessing Officer of the books of account or other evidence from which material evidence could, with due diligence, have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of the said section.

"II. Section 2(22) of the Income-tax Act, 1961- Deemed dividend - Assessment year 2002- 03-Where assessee had received loan/advance from a company but in original assessment proceedings did not disclose that it was holding more than 10 per cent share capital in said company, Assessing Officer was justified in reopening assessment on ground that provisions of section 2(22)(e) were applicable [In favour of revenue] After completing original assessment, the Assessing Officer noted that the assessee had received unsecured loan from a company ITL in which it was holding more than 10 per cent share capital, and such amount to extent of accumulated profits of ITL was to be assessed as deemed dividend under section 2(22)(e). He, therefore, issued notice to reopen assessment. On appeal, the Commissioner (Appeals) upheld validity of reopening. Held that the assessee contended that in the balance sheet it had disclosed a sum of Rs. 2 crores as deposit received from ITL and the investment in shares of ITL However, from these details it was not clear as to what percentage of share capital was held by the assessee in ITL as the balance sheet had not been filed before the Assessing Officer. Moreover, as per the Explanation to section 147, mere production before the Assessing Officer of the books of account or other evidence from which material evidence could, with due diligence, have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of the said section. Therefore, even if the balance sheet of ITL had been filed before the Assessing Officer from which necessary details could have been gathered by the Assessing Officer, this did not mean disclosure of information by the assessee within the meaning of the proviso. Since the assessee had received loan/advance from ITL, it was required to give details before the Assessing Officer at the time of original assessment that it was holding more than 10 per cent of the share capital in ITL but, it was not declaring the amount received during the year as deemed dividend because the same was a deposit and not loan/advance. This would have been the true and full disclosure of materials necessary for assessment which had not been done by the assessee. Merely because the ITL was being assessed in the same charge, could not be the ground to argue that material facts were available with the Assessing Officer. The material facts have to be disclosed by the assessee in the case of the assessee in the return of the income or during the assessment proceedings which had not been done.

Ajay Bakliwal vs. ACIT Therefore, it was quite reasonable to conclude that the assessee had failed to give truly and fully all material facts necessary for assessment at the time of original assessment. The reopening of the assessment was, therefore, legally valid." In the present case also the assessee was required to give details before the Assessing Officer at the time of original assessment that it was holding more than 10 per cent of the share capital in Company but, it was not declaring the amount received from Company during the year by business concerns where he is having substantial interest as deemed dividend because the same was a deposit and not loan/advance. This would have been the true and full disclosure of materials necessary for assessment which had not been done by the assessee. Hence, the duty to truly and fully disclose all material facts necessary for assessment of the income, was not discharged; particularly viewed from the Explanation to section 147.

In view of above discussion the contention of the assessee in this regard are not found to be acceptable.

4.7.2 There is no change of opinion and on the basis of audit objection the case can be reopened

The appellant has stated that notice u/s 148 cannot be issued on the basis of opinion and suggestion provided by the audit.

The claim of change of opinion is not found to be correct on the facts as no opinion was formed by the AO during the original assessment proceedings on the issue of deemed dividend. The appellant failed to establish that the AO made enquiry on this issue and formed an opinion on this issue. Since, there was no opinion formed by the AO on this issue, there is no change in opinion while initiating reopening proceedings.

Hon ble High Court Of Calcutta in the case of Principal Commissioner of Income-tax v. I.T.C. Ltd. [2024] 163 taxmann.com 294 (Calcutta) (21-05-2024] held that where Assessing Officer while passing original assessment order under section 143(3) was totally silent on liability of assessee to tax under section 115JB and he neither noticed provisions of section 115JB nor formed any opinion with regard to liability to tax of assessee on book profit, assessment order was nonspeaking and cryptic and, therefore, reassessment proceedings initiated by Assessing Officer under section 147 was not based on change of opinion. The head notes of the decision is read as under-

"Section 115JB, read with section 148, of the Income-tax Act, 1961-Minimum alternate tax Payment of (Reassessment) - Assessment year 2005-06-Assessing Officer issued a notice under section 147/148 to assessee to reopen assessment on ground that assessee was liable to be taxed under section 115JB and, accordingly, passed reassessment order Tribunal held that reassessment proceedings initiated by Assessing Officer was based in change of opinion It was noticed that while passing original assessment order under Ajay Bakliwal vs. ACIT section 143(3) Assessing Officer was totally silent on liability of assessee to be taxed under section 115JB He neither noticed provisions of section 115JB nor formed any opinion with regard to liability to tax of assessee on book profit - Whether, in view of aforesaid, assessment order was non-speaking and cryptic and, therefore, reassessment proceedings initiated by Assessing Officer under section 147 was not based on change of opinion - Held, yes Whether, therefore, impugned order passed by Tribunal was unsustainable in law -Held, yes [Para 18) [In favour of revenue)"

In the present case also the Assessing Officer while passing original assessment order under section 143(3) was totally silent on issue of deemed dividend and he neither noticed provisions of section 2(22)(e) nor formed any opinion therefore, reassessment proceedings initiated by Assessing Officer under section 147 was not based on change of opinion.

It is also seen that after objection/observation raised by the Audit party in the case of Millenium Technocrat Colonizers Pvt. Ltd has been duly examined by the AO to his satisfaction by verifying the records. The AO has accordingly after examination of facts formed his own belief. The action of the AO in examining the facts from records after receiving the audit objection is as per the established procedure of the department. No prejudice is caused to the assessee if the verification is made by the AO after getting objection from the audit party. Hon'ble High Court Of Gujarat in the case of N.K. Industries Ltd. v. Income- tax Officer (OSD) held that where Assessing Officer was convinced that depreciation was wrongly claimed at full rate, reassessment notice could not be quashed merely on ground that she formed opinion on basis of audit objection.

In the present case also, the AO has formed his belief on the basis of verification of facts after receipt of audit objection and the reassessment notice could not be quashed merely on ground that the AO formed opinion on basis of audit objection.

Hon'ble High Court Of Kerala in the case of Sree Narayana Guru Memorial Educational and Cultural Trust v. Assistant Commissioner of Income-tax held that where revenue audit party, objected to finalization of return of assessee-trust at 'Nil for reason that during year assessee received corpus donations which were not included in income for application under section 11, reopening of assessment on basis of such audit objection could not be treated as a change of opinion as Assessing Authority had proceeded strictly in accordance with provisions of clause (ii) of Explanation 1 to section 148. The head notes of the decision read as under-

"Section 11, read with section 148, of the Income-tax Act, 1961 - Charitable or religious trust - Exemption of income from property held under (Audit objection) - Assessment year 2016-17 Assessment of assessee-trust was completed under section 143(3) at 'Nil' income - Revenue audit party, however, objected to finalization of retum of assessee-trust at 'Nil' for reason that during year, assessee received corpus donations which were not included in income for application under section 11 On basis of revenue audit objection, Assessing Officer decided to reopen assessment of assessee by issuing Ajay Bakliwal vs. ACIT notice under section 148-Whether with effect from 1-4-2022, audit objection is one of reasons for reopening assessment as per clause (ii) of Explanation 1 to section 148 Held, yes Whether therefore, where revenue audit raised an objection that assessment was not completed in accordance with provisions of Act, it could not be treated as a change of opinion because this was statutory prescription and statutory ground/reason for reopening assessment as Assessing Authority had proceeded strictly in accordance with provisions of clause (i) of Explanation 1 to section 148-Held, yes [In favour of revenue]

Hon'ble High Court Of Allahabad in the case of Subodh Agarwal Vs. State of UP [2023] 149 taxmann.com 448 (Allahabad) held that An audit objection can constitute information on basis of which re-assessment proceeding can be initiated.

Hon'ble High Court Of Allahabad in the case of Suresh Chand Gupta v. Principal Commissioner of Income-tax (2020) 117 taxmann.com 731 (Allahabad)/[2020] 273 Taxman 68 (Allahabad)/[2021] 438 ITR 657 (Allahabad) [10-02-2020) held that Where Assessing Officer worked out profit on basis of contract/subcontract income but failed to add interest income shown in books as other income, subsequently, on basis of audit objection, Assessing Officer was justified in invoking section 147/148 and reassessing 'interest income

Hon'ble Supreme Court Of India in the case of Assistant Commissioner of Income-tax v. Rajesh Jhaveri Stock Brokers (P) Ltd. (2007) 161 Taxman 316 (SC)/[2007] 291 ITR 500 (SC)/[2007] 210 CTR 30 (SC)(23-05-2007] also considered this issue and it was held that on basis of audit objection relating to debit of certain amount as bad debt, Assessing Officer re-opened assessment by issuing notice in terms of section 148 was valid. The head nates of the decision are as under-

"Section 143 of the Income-tax Act, 1961 (Position prior to 1-6-1999) Assessment Whether intimation under section 143(1)(a) cannot be treated to be an order of assessment -Held, yes Section 147, read with section 143, of the Income-tax Act, 1961 Income escaping assessment Non-disclosure of primary facts Assessee filed loss return which was processed under section 143(1)- Subsequently, on basis of audit objection relating to debit of certain amount as bad debt, Assessing Officer re-opened assessment by issuing notice in terms of section 148-On writ petition filed by assessee against aforesaid notice, High Court, following decision of Gujarat High Court in Adanı Exports v. Dy. CIT (Assessment) [1999] 240 ITR 224 allowed writ petition Whether since Adani Export's case (supra) was related to section 143(3), while instant case was related to section 143(1) and there is conceptual difference between section 143(1) and section 143(3), High Court wrongly applied Adani Export's case (supra) - Held, yes"

The ITAT Delhi Bench 'B' in the case of Deputy Commissioner of Income- tax v. B.R. Industries Ltd. [2005] 1 SOT 283 (Delhi)/[2005] 96 TTJ 962 (Delhi)[06- 10-2004] held that audit objection was material on basis of which Assessing Officer could definitely form a belief about escapement of income, even though

In view of above discussion, the arguments of the assessee with regard to change of opinion are found to be without any merit. It is held that the AO was justified in making verification of facts after receipt of audit objection and the AO formed his belief about escapement of income after verification of facts. The AO has acted as per the established procedure and formed his belief after verification of facts. Hence, the objections raised by the assessee are not found to be acceptable and rejected

4.7.3 Notice under section148 can be issued on mistake identified by audit and verified by the AO

The issue raised by the assessee is not acceptable. It is not correct that every reassessment proceeding is initiated on noticing mistake committed by the AO in the original assessment proceedings. Some income is escaped from the assessment because of oversight also. In case of mistake also there are cases where the mistake can be bona-fide mistakes. Hence, when the audit party raises objection, the AO is duty bound to verify the facts and take remedial action as prescribed in the Income Tax Act, if the objection is found to be correct from verification of records. Remedial action is necessary to prevent the loss of revenue of Government of India.

HIGH COURT OF ALLAHABAD Suresh Chand Gupta v. Principal Commissioner of Income-tax [2020] 117 taxmann.com 731 (Allahabad)/[2020] 273 Taxman 66 (Allahabad)/[2021] 438 ITR 657 (Allahabad) [10-02-2020] held that on account of oversight/mistake, the AO failed to add interest income shown in books as other income. Subsequently, audit objections were raised by audit party. Invoking section 147/148 was held to be valid. The head notes of the decision read as under-

"Section 56, read with section 147, of the Income-tax Act, 1961- Income from other sources - Chargeable as (Reassessment) - Assessing Officer worked out profit on basis of contract and sub-contract income On account of oversight/mistake, he failed to add interest income shown in books as other income - Subsequently, audit objections were raised by audit party Invoking section 147/148, Assessing Officer, reassessed 'interest income of appellant - Whether since in Profit and Loss Account, assessee himself had shown interest on FDRs as 'other income', question of double addition would not arise on reassessment - Held, yes - Whether thus, reassessment was just and proper - Held, yes [Para 2] [In favour of revenue]"

Hon'ble High Court Of Kerala in the case of Kerala Financial Corporation v. Joint Commissioner of Income-tax [2009] 308 ITR 434 (Kerala)/[2009] 221 CTR 613 (Kerala) [19-12-2007] held that, admittedly, the assessee was not entitled to claim deduction under section 36(1)(viii) and the assessee by making the claim was trying whether the officer could be persuaded to commit a mistake and get the Ajay Bakliwal vs. ACIT claim approved. The assessee initially succeeded because the officer accepted the return probably because the assessee being a Government of Kerala concern was not expected to make a bogus claim in the return filed. However, the question to be considered was whether the assessee could be the beneficiary of its own fraud or mistake and whether the Assessing Officer was prevented from correcting the same under section 147. It was to be noted that the Explanation to section 147(2) specifically provides that the excessive relief granted under the Act leading to escapement of chargeable income is a ground for reopening of assessment to bring to tax the escaped income. This was a clear case of the assessee claiming deduction which it was not entitled and, therefore, escapement of income was on account of the excessive relief claimed by the assessee and allowed by the officer by mistake. The assessee could not contend that there was a change of opinion on the part of the Assessing Officer. Therefore, the reassessment was valid.

In the present case also, the question to be considered was whether the assessee could be the beneficiary of its own mistake by not offering the deemed dividend for tax and whether the Assessing Officer was prevented from correcting the same under section 147. This was a clear case of the assessee not offering income for taxation which it was required to offer as per provisions of Act and, therefore, escapement of income was on account of the income of deemed dividend not offered by the assessee and allowed by the officer by mistake. The assessee could not contend that there was a change of opinion on the part of the Assessing Officer. Therefore, the reassessment was valid.

In view of the above discussion, it is held that the AO was justified in issuing notice u/s 148 when some oversight or mistake is found in the original assessment during verification of facts.

4.7.4 Reopening is valid even when the profit was estimated in the original assessment

The appellant argued that in the original assessment competed by way of estimating profit, hence no additions warranted on the issue of deemed dividend. The argument of the appellant are not found to be acceptable. The estimated net profit addition is made considering the claims made in the Profit and loss account. The deemed dividend is not part of profit and loss account. The addition on account of deemed dividend u/s 2(22)(e) is to be made on the basis of loan taken from company. The loan will be shown as loan in balance sheet of assessee or in the balance sheet of business concern where the assessee shareholder is having substantial interest.

The deemed income added u/s 2(22)(e) is therefore not overlapping with the addition of profit made on the basis of disallowing the rae of profit declared by the assessee. In view of the above discussion, it is held that the AO was justified in making addition u/s 2(22)(e) even when addition was already made in the original assessment proceedings on account of less profit rate declared by the assessee.

4.7.5 The copy of reasons of reopening were provided to the assessee when was demanded

The appellant has argued that reasons for issue of notice under section 140 not furnished. In this regard, the AO has reported in the remand report that the assessee has not filed any letter regarding providing of copy of reasons recented before the completion of assessment proceedings Le before 28.12.2019. However. after the completion of assessment proceedings the assesses has requested to furnish the reasons for issuing notice w/s148, which has been provided to the assessoo

In the above facts, no prejudice is caused to the assessen as the reasons of reopening were not demanded by the assessee during the assessment proceedings The AO has provided the reasons of reopening on request of the assessee. Hence, the arguments are not found to be relevant now.

4.7.6 Abatement of Assessment Proceedings

The appellant argued that there was no abatement of assessment proceedings. As per provisions of section 153A of the IT Act assessment of reassessment, if any, relating to any assessment year falling within the period of six assessment years referred to in this (sub-section) pending on the date of initiation of the search under section 132 or making of requisition under section 132A, as the case may be shall abate. In view of above provision, the assessment proceedings. which was initiated as per the provision of section 147 of the Act and notice u/s 148 of the Act was issued earlier on 18.03.2017 is abated. The reopening of assessment is already held as valid in this order. Hence, the objections of the appellant are not found to be acceptable.

Hon'ble Apex Court held in the Civil Appeal No. 6580 OF 2021 in the case of Principal Commissioner of Income Tax, Central-3 Versus Abhisar Buildwell P. Ltd [2023] 149 taxmann.com 399 (SC)/(2023) 293 Taxman 141 (SC)/[2023] 454 ITR 212 (SC) [24-04-2023) as under “11. As per the provisions of Section 153A, in case of a search under Section 132 of requisition under Section 132A, the AOD gets the jurisdiction to assess of reassess the Total income in respect of each assessment year falling within six assessment years. However, it is required to be noted that as per the second proviso to Section 153A, the assessment or re-assessment, if any, relating to any assessment year falling within the period of six assessment years pending on the date of initiation of the search under Section 132 or making of requisition under Section 132A, as the case may be, shall abate. As per sub-section (2) of Section 153A, if any proceeding Initiated or any order of assessment or reassessment made under sub-section (1) has been annulled in appeal or any other legal proceeding, then, notwithstanding anything contained in sub-section (1) or section 153, the assessment or reassessment relating to any assessment year which has abated under the second proviso to subsection (1), shall stand revived with effect from the date of receipt of the order of such annulment by the Commissioner. Therefore, the intention of the legislation seems to be that in case of search only the pending assessment/reassessment proceedings shall abate and the AO would assume the jurisdiction to assess or reassess the 'total income' for the entire six years period/block assessment period. The intention does not seem to be to re-apen the completed/unabated assessments, unless any incriminating material is found with respect to concerned assessment year falling within last six years preceding the search. Therefore, on true interpretation of Section 153A of the Act, 1961, in case of a search under Section 132 or requisition under Section 132A and during the search any incriminating material is found, even in case of unabated/completed assessment, the AO would have the jurisdiction to assess or reassess the 'total income' taking into consideration the incriminating material collected during the search and other material which would include income declared in the retums, if any, furnished by the assessee as well as the undisclosed income. However, in case during the search no incriminating material is found, in case of completed/unabated assessment, the only remedy available to the Revenue would be to initiate the reassessment proceedings under sections 147/48 of the Act. subject to fulfilment of the conditions mentioned in sections 147/148, as in such a situation, the Revenue cannot be left with no remedy. Therefore, even in case of block assessment under section 153A and in case of unabated/completed assessment and in case no incriminating material is found during the search, the power of the Revenue to have the reassessment under sections 147/148 of the Act has to be saved, otherwise the Revenue would be left without remedy. 12 If the submission on behalf of the Revenue that in case of search even where no incriminating material is found during the course of search, even in case of unabated/completed assessment, the AO can assess or reassess the income/total income taking into consideration the other material is accepted, in that case, there will be two assessment orders, which shall not be permissible under the law. At the cost of repetition, it is observed that the assessment under Section 153A of the Act is linked with the search and requisition under Sections 132 and 132A of the Act. The object of Section 153A is to bring under tax the undisclosed income which is found during the course of search or pursuant to search or requisition. Therefore, only in a case where the undisclosed income is found on the basis of incriminating material, the AO would assume the jurisdiction to assess or reassess the total income for the entire six years block assessment period even in case of completed/unabated assessment. As per the second proviso to Section 153A, only pending assessment/reassessment shall stand abated and the AO would assume the jurisdiction with respect to such abated assessments. It does not provide that all completed/unabated assessments shall abate. If the submission on behalf of the Revenue is accepted, in that case, second proviso to section 153A and subsection (2) of Section 153A would be redundant and/or rewriting the said provisions, which is not permissible under the law."

Hon'ble Supreme Court held that as per the second proviso to Section 153A, the assessment or re-assessment, if any, relating to any assessment year falling within the period of six assessment years pending on the date of initiation of the search under Section 132 or making of requisition under Section 132A, as the case may be, shall abate. As per sub-section (2) of Section 153A, if any proceeding initiated or any order of assessment or reassessment made under sub- section (1) has been annulled in appeal or any other legal proceeding, then, notwithstanding anything contained in sub-section (1) or section 153, the Ajay Bakliwal vs. ACIT assessment or reassessment relating to any assessment year which has abated under the second proviso to subsection (1), shall stand revived with effect from the date of receipt of the order of such annulment by the Commissioner. Therefore, the intention of the legislation seems to be that in case of search only the pending assessment/reassessment proceedings shall abate and the AO would assume the jurisdiction to assess or reassess the 'total income for the entire six years period/block assessment period.

This being the pending reassessment proceedings which was abated therefore, the AO would assume the jurisdiction to assess or reassess the 'total income for the entire six-year period/block assessment period. There is no requirement of incriminating material for the abated assessment or reassessment. Hence, the arguments of the appellant are not found to be relevant with regard to incriminating material found during search.

This issue raised by the appellant is found to be without any merit. The decisions relied upon by the appellant are on different facts and not found to be applicable on the facts of the case of the assessee.

In view of above discussion, the ground no. 1 raised by the appellant is treated as dismissed. Finding of ld. CIT(A) on the merits of the case for the addition u/s 2(22)(e):

6.6 I have considered the facts of the case and written submissions of the appellant as against the observations/findings of the AO in the assessment order for the year under consideration. The contentions/submissions of the appellant are being discussed and decided as under-

In this case, the AO noted that the assessee is director in Millenium Technocrat Colonisers Pvt Ltd holding 25.93% of shares and proprietor in M/s Nav Bharat Nirman Co. and partner in Joint venture M/s Vinarma Entreprises and Nav Bharta Niman Co. The company in which the assessee is director has provided loans to the joint venture and proprietor concern in which he is partner and proprietor himself respectively. Therefore, it is established that he has substantial interest in both of these entities and the loans provided by him are in contravention to the section 2(22)(e) of the IT Act. The reliance is placed on following case laws: CIT vs Mukundray K Shah (2007) 160 Taxman 276 (SC). Therefore the amount of loan provided by the company at Rs. 2,72,26,500/- (6,76,000 +2,65,50,500) is hereby added in total income of the assessee treated as deemed dividend as per provision of section 2(22)(e) of the IT Act.

It is submitted that main object of M/s Millennium Technocrats & Colonizers P. Ltd is to purchase and and develop land and construction of building, malis, multipleves, cinema hall etc etc., and to also to act der whereas in the firm M/s Nav Bharat Enterprises (to whom the amount was advanced where the se Ajay Bakliwal vs. ACIT proprietor the assessee is also doing the same line of business activites and is doing the work as octor/developer of land and building etc etc. It is submitted that the said amount of Rs. 6,76,000/- was sovanced to the assessee firm for execution of some work nolating the M's Millennium Technocrats & Colonizers Las. Therefore it is submitted that the amount was advanced to M/s Nav Bharat Enterprises is in the normal course of business of M/s Millennium Technocrata & Colonizers P. Ltd and for the purpose of business only is argued that there is no payment of interest by the assessee to the company millennium technocrats and cooners P limited on the alleged loans and advances. This establishes that the transactions were of regular ure and not of loan and advances as alleged by the learned AO

The argument of the appellant are considered and not found to be acceptable.

Section 2(22)(e) of the Act reads as under "(e) any payment by a company, not being a company in which the public are substantially interested, of any sum (whether as representing a part of the assets of the company or otherwise) made after the 31st day of May, 1987, by way of advance or loan to a shareholder, 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, or to any concern in which such shareholder is a member or a partner and in which he has a substantial interest (hereafter in this clause referred to as the said concern) or any payment by any such company on behalf, or for the individual benefit, of any such shareholder, to the extent to which the company in either case possesses accumulated profits,"

Thus, as per the provisions of aforesaid section, loan or advance paid by a company shall be considered as deemed dividend on fulfillment of following conditions (i) the company must be a company in which the public is not substantially interested; (ii) such a company has given advance or loan: (iii) such payment has been made to a shareholder: and (iv) such shares hold not less than 10% of the voting power. From the facts available on record, it is evident that the company was not a company in which public was substantially interested. Further, the assessee, being shareholder, was holding shares more than 10% in the company. The company have credited loan to the proprietorship concern of the assessee and JV where the assessee is having substantial interest. Thus, the basic conditions of section 2(22)(e) of the Act are satisfied in the present case.

The argument of the appellant is that amount of Rs. 6,76,000/- was advanced to the assessee firm M/s Nav Bharat Enterprises for execution of some work relating the M/s Millennium Technocrats & Colonizers P. Ltd. Therefore it is submitted that the amount was advanced to M/s Nav Bharat Enterprises is in the normal course of business of M/s Millennium Technocrats & Colonizers P. Ltd and for the purpose of business only.

The arguments of the appellant are not supported by the supporting evidences that the amount advanced by the company was for business purpose. Hence, the argument are found to be without any supporting evidence.

On similar facts, Hon'ble ITAT Chennai Bench 'D' in the case of Empee Holdings Ltd. Vs. Deputy Commissioner of Income Tax Company Circle-11(1), Chennai [2019] 112 taxmann.com 319 (Chennai Trib.) held that assessee had strenuously argued that payment of loans/advances by EDL to assessee were for business purposes but what was business purposes in granting these loans/advances were not brought on record by assessee. In this case also no business purposes in granting these loans/advances were not brought on record by assessee. The head notes of the decision read as under-

"Section 2(22), read with section 148, of the Income-tax Act, 1961 - Deemed dividend (Loans/advances to shareholders) Assessment year 2005-06-Assessee company had 41.78 per cent shareholding in its subsidiary company EDL - During year, assessee had taken a loan of certain amount from EDL A return filed by assessee was processed under section 143(3) Later on, Assessing Officer issued reopening notice on ground that amount received by assessee from EDL was to be treated as deemed dividend as per section 2(22)(e) - Assessee contended that these were commercial transactions between assessee and EDL for purposes of business and to promote mutual business interest and, hence, deeming fiction of provisions of section 2(22)(e) were not attracted It was noted that assessee had strenuously argued that payment of loans/advances by EDL to assessee were for business purposes but what was business purposes in granting these loans/advances were not brought on record by assessee Further, neither Assessing Officer made any enquiry as to these transactions between assessee and its subsidiary company, nor assessee placed any material details of such loan before Assessing Officer during course of original scrutiny assessment proceedings Whether, on facts, Assessing Officer was justified in invoking jurisdiction under section 148 Held, yes [Paras 6.2 and 6.12][In favour of revenue] The ITAT Visakhapatnam Bench in the case of M. Amareswara Rao v. Deputy Commissioner of Income-tax, Central Circle, Vijayawada [2016] 67 taxmann.com 15 (Visakhapatnam Trib)/[2016] 157 ITD 657 (Visakhapatnam Trib)/[2016] 178 TTJ 700 (Visakhapatnam - Trib)[08-01-2016) held that where assessee, having beneficial ownership of more than 10 per cent shares in a closely held company, claimed to have received certain amount from company for purchase of land for company but failed to prove same by furnishing relevant details, such amount would come within ambit of section 2(22)(e).

In the present case also the assessee failed to prove the transaction of business purpose by fumishing relevant details, such amount would come within ambit of section 2(22)(e) The head notes of the decision read as under-

"Section 2(22) of the Income-tax Act, 1961- Deemed dividend (Loans) - Assessment years 2007-08 to 2009-10-Assessee, who was a shareholder and director in a closely held company having beneficial ownership of more than 10 per cent shares, had taken certain loan from company in assessment proceedings assessee submitted that Ajay Bakliwal vs. ACIT loan was taken for purpose of purchase of land for company and, therefore, could not be treated as deemed dividend under section 2(22)(e) However, assessee failed to prove by furnishing relevant details in form of agreements or details of amount spent for purpose for which it was drawn and he kept on changing his arguments at each stage of proceedings - Whether loan taken by assessee was rightly considered as deemed dividend within meaning of section 2(22)(e) -Held, yes [Para 10] [In favour of revenue)" In view of above discussion, the claim of the appellant with regard to amount of Rs. 6,76,000/- advanced to the assessee firm M/s Nav Bharat Enterprises for execution of some work relating the M/s Millennium Technocrats & Colonizers P. Ltd. is not found to be acceptable and rejected.

The appellant has not furnished any such claim with regard to remaining amount of transaction.

It is argued that there is no payment of interest by the assessee to the company millennium technocrats and colonizers P limited on the alleged loans and advances. This establishes that the transactions were of nature of distribution of profits only. The payment of interest is not relevant for the purpose of making addition as deemed dividend.

Hence, it is held that the entire transaction was a loan transaction without there being any business purpose of the transaction. The claim of the assessee in this regard is not found to be acceptable. The nature of transaction is therefore considered as deemed dividend.

It is argued that the addition could not exceed the accumulated profits of the company. It is argued that undur section 2(22)(e) the upper limit of additions is to the extent to which the company possess accumulated profits in the case of the assessee the Company M/s Millenium technocrats and colonizers P limited possessed accumulated profit tothe extent of Rs. 44,62,932/- in respect of this copy of Balance Sheet as on31.03.2011 and as on 31.03.2012 of M/s Millennium Technocrats and Colonizers Plimited is available on paper book page no cited supra, Therefore the addition could not exceed this amount. The leamed AO erred in making addition of Rs. 2.72.26,500/- erroneously, unlawfully and illegally The perusal of the aforesaid section reveals that the deemed dividend would not exceed accumulated profits.

The argument of the appellant are considered. For the purpose of section 2(22)(e) of the Act, the amount of deemed dividend should be to the extent to which the company possesses accumulated profits. Explanation 2 to section 2(22) of the Act, elaborates the term "accumulated profits" and same reads as under.

"Explanation 2- The expression "accumulated profits" in sub-clauses (a), (b), (d) and (e), shall include all profits of the company up to the date of distribution or payment referred to in those sub-clauses, and in sub-clause (c) shall include all profits of the company up to the date of liquidation, but shall not, where the liquidation is consequent on Ajay Bakliwal vs. ACIT the compulsory acquisition of its undertaking by the Government or a corporation owned or controlled by the Government under any law for the time being in force, include any profits of the company prior to three successive previous years immediately preceding the previous year in which such acquisition took place."

As per the provision of Explanation 2, all the profits of the company up to the date of distribution or payment under section 2(22)(e) of the Act shall be considered as accumulated profits. Thus, [the provision of Explanation 2 to section 2(22) of the Act does not distinguish between the profit accumulated in the immediately preceding year and the current year profit, and takes within its ambit all the profits up to the date of payment.

Hence, all the profits of the company up to the date of distribution or payment under section 2(22)(e) of the Act shall be considered as accumulated profits. The AO shall verify the claim of the assessee that the accumulated profits on the date of loan were only Rs. 44,62,932/. If found correct, the addition is to be limited to the amount of Rs. 44,62,932/-. However, if the amount of accumulated profits is more than the this amount then the addition is to be confirmed to the amount of accumulated profits as on the date of giving loan. The remaining amount of addition made by the AO is not found to be sustainable in view of the provisions of Income Tax Act.

The appellant has relied upon following decisions-

CIT v/s Ambassador Travels (P) Ltd (2008) 173 TAXMAN407 (DEL)/220CTR 475

In that case, it was held that being a travel agency, assessee had regular business dealings with above two concerns dealing with holiday resorts and tourism industry and, thus, transactions-in-question could not be described as advances or loans forming distinct category of financial transactions. However, in the present case, the appellant has not established regular business transactions. One of the transaction claimed is also found to be without any evidence of business related transaction. Hence, the decision is not found to be applicable on the facts of the present case.

Bousay Oil Ind.Ltd. v/s DCIT. 28 SOT 383 (Mum)

In that case, it was held that Inter-Corporate Deposits (ICDs) are different from loans or advances and would not come within purview of deemed dividend under section 2(22). It is also not proved that the assessee was accepting deposits.

However, in the present case, it is evident that the loans are not ICDs. Hence, this decision is not applicable on the facts of the case of the assessee.

In view of above discussion, this ground of appeal is treated as partly allowed.

Ajay Bakliwal vs. ACIT 7. Ground No. 6 of appeal is related with the determination of total income of Rs. 3,41,19,854/-. 7.1 The A/R of the appellant submitted written submission during the appellate proceedings on 02.12.2022, the same is reproduced as under: "As discussed above 7.2 I have considered the facts of the case and written submissions of the appellant as against the observations/findings of the AO in the assessment order for the year under consideration. The contentions/submissions of the appellant are being discussed and decided as under.- This is general ground of appeal without any specific argument. The specific grounds of appeal are already decided while deciding other grounds of appeal. No seperate adjudication is required on this ground of appeal, This ground is treated as dismissed.

8. The last Ground of Appeal is that the appellant craves to add/alter/ amend the grounds of the appeal before the final hearing is completed. 8.1 The A/R of the appellant submitted written submission during the appellate proceedings on 02.12.2022, the same is reproduced as under: "Not pressed" 8.2 The appellant has not added, altered or amended any of the above-mentioned grounds of appeal. Accordingly, such mention by the appellant in his ground is treated as general in nature, no needing any specific adjudication and is accordingly treated as disposed of.

5. Aggrieved from that order the assessee is in appeal before this tribunal challenging the finding of the ld. CIT(A) on the grounds as stated herein above in para 2. To support the various grounds raised by the assessee, ld. AR of the assessee filed detailed written submissions which reads as follows:

Ajay Bakliwal vs. ACIT “Briefly stated the facts of the case are that the original assessment for the relevant assessment year was completed u/s 143(3) on 31.03.2015. At the same time, the case of M/s Millenium Technocrat Colonizers Pvt. Ltd. (MTCPL for short) was also completed u/s 143(3) by another AO. Later, during Internal audit of MTCPL by the department, the IAP made an observation, which is reproduced below- The assessee has shown loans and advances given at Rs.6,76,000/- to Nav Bharat Nirman Co. and Rs.2,65,50,500/- to M/s M/s Vinamra Enterprises & Nav Bharat Nirman Co. As per balance sheet as on 31.03.2012, directors of the assessee company have substantial interest in the concern to which advance was given. Hence, provision of section 2(22)(e) may be applicable on such payments. On this basis, the then AO issued notice u/s 148. He accepted this observation as a Gospel truth. He did not even try to find out whether the assessee is a beneficial owner of shares and whether he has substantial interest in the concern M/s Vinamra Enterprises & Nav Bharat Nirman Co. During the assessment proceedings, the AO added the entire loan advanced by MTCPL aggregating Rs.2,72,26,500/- as deemed dividend u/s 2(22)(e). The Ld.CIT(A) ignoring the legal and factual submissions, restricted the addition to the accumulated profits.

Submission on the grounds of appeal

1. The Ld. CIT(A) has erred in failing to consider that the reasons recorded for reopening of the case u/s 148 was unfounded, illogical and unjustified, there being no application of mind by AO in recording the reasons. The AO had initiated the reassessment proceedings on the basis of information passed on by the audit. It remains established that tangible material or factual information can be received from various external sources and the objections raised by an Audit Party is not absolutely barred. In Transworld International Inc. v. Joint Commissioner of Income tax, the Delhi High Court Court has observed that factual information can come from various sources including an audit objection. But a blanket reliance should not be placed on such objection to initiate reassessment proceedings and the AO must apply its own mind. Here, in this case, the AO without conducting any further inquiry or examining any other documents, straightaway issued notice u/s 148, after obtaining approval u/s 151, which too, was given mechanically.

In FIS Global Bus. Sol. India Pvt. Ltd. v. Asst. CIT, Delhi High Court has held that the audit objection constitutes merely an information and no more. Moreover, in CIT v. Simbhaoli Sugar Mills Ltd, it was held that audit report objections cannot be a solitary basis to initiate reassessment proceedings. Since the reassessment proceedings were initiated solely on the basis of an observation made by the Internal Audit Party, it is pertinent to examine the scope and extent of such information constituting fresh tangible material. In the case of Indian & Eastern Newspaper Society v. CIT, the Supreme Court has held that an audit by the Ajay Bakliwal vs. ACIT Comptroller and Auditor General of India is principally intended for the purposes of satisfying itself with regard to the sufficiency of the rules and procedures prescribed for the purpose of securing an effective check on the assessment, collection and proper allocation of revenue. The relevant Internal Audit Manuals and Circulars indicate that Audit Department should not in any way substitute itself for the Revenue authorities in the performance of their statutory duties. The relevant extract provides that:- “4. Audit does not consider it any part of its duty to pass in review the judgment exercised or the decision taken in individual cases by officers entrusted with those duties, but it must be recognised that an examination of such cases may be an important factor in judging the effectiveness of assessment procedure. It is however, to forming a general judgment rather than to the detection of individual errors of assessment, etc. that the audit enquiries should be directed. The detection of individual errors is an incident rather that the object of audit.” Furthermore, other provisions stress that the primary function of audit in relation to assessments and refunds is the consideration whether the internal procedures are adequate and sufficient. It is not intended that the purpose of audit should go any further.

In Indian & Eastern Newspaper Society (supra), it was further observed that:- “11--- Whether it is the internal audit party of the Income Tax Department or an audit party of the Comptroller and Auditor-General, they perform essentially administrative or executive functions and cannot be attributed the powers of judicial supervision over the quasi judicial acts of income tax authorities. The Income Tax Act does not contemplate such power in any internal audit organisation of the Income Tax Department; it recognises it in those authorities only which are specifically authorised to exercise adjudicatory functions. Neither statute supports the conclusion that an audit party can pronounce on the law, and that such pronouncement amounts to “information” within the meaning of Section 147(b) of the Income Tax Act, 1961.”

Reopening of assessment merely on Internal Audit Objection Not Justified as held by ITAT, Mumbai in the case of Lionbridge Technologies Pvt. Ltd. Vs. ACIT, in ITA No.610/Mum/2018. There is also a catena of judgments to the effect that initiation of reassessment proceedings on the basis of audit report objections is bad in law. A reference in this regard can be made to the judgment of our High Court titled Transworld International Inc. v. Joint CIT (2005) 273 ITR 242 (Delhi) and also the judgments of the Supreme Court in Indian and Eastern Newspaper Society v. CIT (1979) 119 ITR 996 (SC) and CIT v. Lucas T.V.S. Ltd. (2001) 249 ITR 306 (SC). The sum and substance of the discussion is that reassessment proceedings under section 147 read with section 148 of the Act cannot be initiated merely based on the audit report. An audit is principally intended for the purpose of satisfying the auditor with regard to the sufficiency of rules and procedures prescribed for the purpose of securing an effective check on the assessment, collection and proper allocation of revenue. As per paragraph (3) of the circular issued by the Board on July 28, 1960, also an audit department should not in any The Competent authority giving approval simply mentioned Yes, it is a fit case to issue notice u/s 148. He has given the approval in a mechanical way without applying his mind. He has failed to satisfactorily record his concurrence and by no prudent stretch of imagination, the expression “Yes” could be a valid approval. It is submitted that use of the expressions such as "Yes", or "Yes I am satisfied" or "Approved" or “Yes, it is a fit case to issue notice u/s 148” do not meet the requirements of law. Delhi High Court in the case of United Electrical Co. (P) Ltd. vs CIT (2012) 258 ITR 317 has held that the power vested in the Joint Commissioner to grant or not to grant approval is coupled with a duty. The Joint commissioner is required to apply his mind to the proposal put up to him for approval in the light of the material relied upon by the assessing officer. The said power cannot be exercised casually and in a routine matter. In the appellant's case before your honour, the JCIT has not applied his mind. The JCIT has given the approval in a mechanical manner without verifying / examining the materials relied upon by the A.O. for recording the purported reasons. The JCIT has just written "Yes, it is a fit case for issue of notice u/s 148" at the proposal prepared by the A.O. and accorded satisfactionu/s 151(2) for reopening the assessment. The Hon'ble MP High Court in the case of CIT v M/s S. Govanka Lime and Chemicals Ltd. 2015 (5) TMI 217 held that where the JCIT has granted sanction by merely recording "Yes I am satisfied", the same was not sustainable. The Hon'ble Apex Court has since upheld the said judgement reported at CIT v M/s S. Govanka Lime and Chemicals Ltd. [2015] 64 taxmann.com 313 (SC).

The Hon’ble Delhi High Court in a very recent decision delivered on 20.02.2024 in the case of Principal CIT v. Pioneer Town Planners (P) Ltd., 2024 SCC OnLine Del 1685, opined that “the satisfaction arrived at by the prescribed authority under Section 151 of the Act must be clearly discernible from the expression used at the time of affixing its signature while according approval for reassessment under Section 148 of the Act. The said approval could not be granted in a mechanical manner as it acted as a linkage between the facts considered and conclusion reached” The Court relied on Principal CIT v. N. C. Cables Ltd., (2017) 391 ITR 11,wherein the usage of the expression “approved” was considered to be merely ritualistic and formal rather than meaningful. The Court also relied on Central India Electric Supply Co. Ltd. v. ITO, (2011) 333 ITR 237, wherein it was opined that merely rubber stamping of “Yes” would suggest that the decision was taken in a mechanical manner. The Court further relied on Chhugamal Rajpal v. S.P. Chaliha, (1971) 1 SCC 453, wherein the Supreme Court refused to consider the affixing of signature along with the noting “Yes” as valid approval. It would also be pertinent to mention that the reasons for reopening, which ought to have been provided along with the notice u/s 148, were never made available to the assessee, even during the course of assessment u/s 153A. It is settled law that the Assessing Officer is duty-bound to supply the reasons recorded in the Ajay Bakliwal vs. ACIT reasonable time period as held by the Hon’ble Supreme Court in the case of GKN Driveshaft (India) Ltd. vs. CIT (2003) 259 ITR 19 (SC). In the case of Commissioner of Income Tax vs. Videsh Sanchar Nigam Ltd, the Hon’ble High Court of Bombay has held as under: “2. The finding of fact recorded by the Tribunal is that in the present case the reasons recorded for reopening of the assessment though repeatedly asked by the assessee were furnished only after completion of the assessment. The Tribunal following the judgment of this Court in the case of CIT vs. Fomento Resorts & Hotels Ltd., IT Appeal No. 71 of 2006 decided on 27th Nov., 2006, has held that though the reopening of the assessment is within three years from the end of the relevant assessment year, since the reasons recorded for reopening of the assessment were not furnished to the assessee till the completion of assessment, the reassessment order cannot be upheld. Moreover, special leave petition filed by the Revenue against the decision of this Court in the case of CIT vs. Fomento Resorts & Hotels Ltd. (supra) has been dismissed by the Apex Court, vide order dt. 16th July, 2007.

Similarly, in the case of Kothari Metals vs. ITO (supra) the Hon’ble High Court of Karnataka expressed opinion that proceedings for reassessment could not have been taken for non-furnishing of the reasons of reopening of assessment. The relevant paragraph of the said judgment is reproduced as under:

“6. The question of non-furnishing the reasons for re-opening an already concluded assessment goes to the very root of the matter. After filing of the return in response to the notice issued under Section 148 of the Act or on request of the assessee requesting that the return of income initially filed be treated as a return of income filed in response to such notice, the assessee is entitled to be furnished the reasons for such re-opening, which can also be challenged independently. Since such reasons had not been furnished to the appellant, even though a request for the same had been made, we are of the opinion that proceedings for the re-assessment could not have been taken further on this ground alone.

In the case of Tata International Ltd. Vs. Deputy Commissioner of Income Tax, the Tribunal after considering the decision in the case of GKN Driveshaft (India) Limited (supra) and Videsh Sanchar Nigam Ltd (supra) held that when the Assessing Officer failed to furnish reasons recorded for reopening of the assessment within a reasonable time and prior to the completion of assessment, then the assessment order passed without supply of reasons as recorded for reopening the assessment is invalid and cannot sustain. The relevant findings of the Tribunal are as under:

Thus reassessment completed without furnishing the reasons actually recorded by the A.O. for reopening of assessment is not sustainable in law because the A.O. is duty bound to supply the same within reasonable time as held by the Hon'ble Supreme Court in case of GKN Driveshafts (India) Ltd (supra). The It may be stated that, nowhere in the assessment order, the Ld.AO has demonstrated or proved that the assessee had a substantial interest in the concern, M/s Vinamra Enterprises & Nav Bharat Nirman Co.(JV) Section 2(22)(e) of the Income-tax Act, 1961 (the Act) is a deeming fiction that seeks to consider the following transactions briefly listed, which are otherwise not in the nature of income to be deemed dividend income, to the extent of accumulated profits: • Any payment by a closely held company (i.e., a private company) of any sum by way of advance or loan to a shareholder, who is the beneficial owner of equity shares holding not less than 10% of the voting power (hereinafter referred to as ‘such company’ and ‘such shareholder’ respectively); (First limb); • Or to any concern in which such shareholder is a member or a partner and in which he has a substantial interest; (Second limb); • Or any payment by any such company on behalf, or for the individual benefit, of any such shareholder. (Third limb). Furthermore, the term ‘substantial interest’ is explained in Explanation 3(b) as follows - a person shall be deemed to have substantial interest in a concern, other than a company, if he is, at any time during the previous year, beneficially entitled to not less than 20% of the income of such concern.

The purpose of insertion of clause (e) to Section 6(A) in the 1922 Act was to bring within the tax net monies paid by the closely held companies to their principal shareholder in the guise of loan and advances to avoid payment of tax. Therefore, if the said background is kept in mind, it is clear that provisions of Section 2(22)(e) of 1961 Act, which is pari materia with Section 2(6A)(e) of 1922 Act, plainly seek to bring within the tax net accumulated profits which are distributed by closely held companies to its shareholder in the form of loans. The purpose being that persons who manage such closely held companies should not arrange their affairs in a manner that they assist the shareholder in avoiding the payment of taxes by having these companies pay or distribute, what would legitimately be dividend in the hands of the shareholder, money in the form of an advance or loan.

Ground No. 2 & 3 The Ld. CIT(A) has erred in deciding the appeal without considering the submission filed by the assessee on 24.09.2024. The Ld. CIT(A) has erred in law as well as on facts in sustaining an addition of Rs.44,62,938/- under section 2(22)(e) of the Income Tax Act. The AO has held that the loan of Rs.2,65,50,500/- and Rs.6,76,000/- provided by M/s Millenium Technocrat Colonizers Pvt. Ltd. to M/s Vinamra Enterprises & Nav Bharat Nirman Co.(JV) and Nav Bharat Nirman Company, respectively, is covered under the second limb and has made the addition accordingly. As a matter of fact, the AO had no material in his possession to ascertain the ownership of the assessee in M/s Vinamra Enterprises & Nav Bharat Nirman Co.(JV). Apart from baldly stating that the assessee has a substantial Ajay Bakliwal vs. ACIT interest in Vinamra Enterprises & Nav Bharat Nirman Co.(JV) being a partner, he has nowhere in his assessment order mentioned as to what is the percentage of profits of this concern to which the assessee is entitled to, so as to bring him in the ambit of beneficial owner. He neither questioned the assessee as to his (assessee’s) profit sharing ratio in the concern nor called for the deed prevalent during the year. As a matter of fact, the AO did not have any evidence in his possession to conclude that the assessee had substantial interest in M/s Vinamra Enterprises & Nav Bharat Nirman Co. Simply, on the strength of the audit observation as pointed out by the IAP, the AO also held that being a partner in M/s Vinamra Enterprises & Nav Bharat Nirman Co.(JV), the assessee has a substantial interest in it. His order is absolutely silent on the percentage of income to which the assessee was entitled, to make the deeming provision u/s 2(22)(e) applicable in his case. The Ld.CIT(A) also failed to give a finding in this respect before upholding the addition to the extent of the accumulated profits. In view of the above facts, the addition sustained by the CIT(A) is erroneous and may kindly be deleted.

Coming to the facts of the case, it is stated that M/s Millenium Technocrat Colonisers Pvt. Ltd. was formed in the year 2006. The assessee, Shri Ajay Bakliwal along with Rajendra Singh, Kiran Singh and Usha Bakliwal were the promoters/directors of this company. Shri Ajay Bakliwal is a qualified civil engineer and architect who had a long experience of 35 years in construction line. In July 2010, he associated with one Shri Ram Kishan Verma to form M/s Vinamra Enterprises & Nav Bharat Nirman Co.(JV) in July 2010. This JV got a project for construction of EWS and LIG flats under the Affordable Housing Policy of Rajasthan Government. The MOU for the said project was signed on 25 April, 2011 and construction started in June, 2011. Substantial funds were required for this project. The JV being new and the project being of Affordable Housing Scheme, the bankers of JV (BOB) were reluctant on providing loan to the firm. Millenium Technocrat Colonisers Pvt. Ltd. had taken loans from ICICI Bank, so the assessee applied for loan in his individual capacity to ICICI Bank, and the bank proposed that loan would be sanctioned subject to the Smt. Usha Jain & Smt. Kiran Singh (Directors of M/s Millenium Technocrat Colonisers Pvt. Ltd.) and the Company, becoming co-applicants in this Loan. The bank sanctioned the loan in the name of Ajay Bakliwal and the repayment was also scheduled from the bank account of Ajay Bakilwal's Prop. concern, Nav Bharat Nirman Company, whereas due to technical requirements the cheque was issued in the name of Millenium Technocrat Colonisers Pvt. Ltd. Millenium Technocrat Colonisers Pvt. Ltd received the funds from the bank and at the same time it transferred the same to the Ajay Bakliwal's partnership firm. Millenium Technocrat Colonisers Pvt. Ltd had never paid any EMI of this loan and also not claimed any interest and other expenses in it’s books of accounts, which can be verified from the confirmation ledger. As Millenium Technocrat Colonisers Pvt. Ltd had received this amount on behalf of Ajay Bakliwal, it had transferred the same to Ajay Bakliwal's concern, as per his directions. The accountant of the Millenium Technocrat Ajay Bakliwal vs. ACIT Colonisers Pvt. Ltd had by mistake, opened the account at both side i.e. Loan from ICICI (Loan ) at credit side and Vinamra Enterprises & Nav Bharat Nirman Co. (Short term loan and advance) at debit side instead of passing the net entry. Thus, the transaction in the books of Millenium Technocrat Colonisers Pvt. Ltd is an incorrect presentation in it’s books of accounts. The payment shown as Short term advance to Vinamra Enterprises & Nav Bharat Nirman Co. being an incorrect presentation in it’s books by the Company, should not be treated as Deemed dividend as the transaction is not in the nature of advance.

As the incorrect and incomplete presentation was in the books of account of Millenium Technocrat Colonisers Pvt. Ltd, the assessee should not be made to suffer and taxed under deeming provisions. When the loan was sanctioned in the name of Ajay Bakliwal, the repayment of the loan through EMIs was made by Ajay Bakliwal, all the incidental charges of loan were claimed by Ajay Bakliwal, just due to payment received by the M/s Millenium Technocrat Colonisers Pvt. Ltd in the capacity of third party should not be treated as deemed dividend.

It is an undisputed fact that the loan stood in the name of Ajay Bakliwal, and the Bankers took his cheque (Nav Bharat Nirman Company – his proprietory concern) for ECS. It is also an undisputed fact that the amount received by Millenium Technocrat Colonisers Pvt. Ltd. in its bank account was transferred to Vinamra Enterprises & Nav Bharat Nirman Co.(JV) immediately. The accountant of Millenium Technocrat Colonisers Pvt. Ltd. erred in crediting and debiting the account of ICICI Bank and Vinamra Enterprises & Nav Bharat Nirman Co.(JV). seperately. He ought to have passed passed a Net entry squaring of both the accounts, at the year end. So, clearly it is not a case of a loan being provided by the Company (Millenium Technocrat Colonisers Pvt. Ltd.) to a concern (Vinamra Enterprises & Nav Bharat Nirman Co.) in which the shareholder (Ajay Bakliwal) has substantial interest. It is a clear cut case of the loan having been obtained by the assessee and utilized by him for the purpose of business of the partnership concern and the EMIs being borne by him out of his bank account. No funds of the Company (Millenium Technocrat Colonisers Pvt. Ltd.) have been diverted to Vinamra Enterprises & Nav Bharat Nirman Co. No interest is being charged to the P & L account of Millenium Technocrat Colonisers Pvt. Ltd. As such, no case for deemed dividend in the hands of Ajay bakliwal is made out.

It may be added that the bank (ICICI Bank) issued the cheque favouring M/s Millenium Technocrat Colonisers Pvt. Ltd. which was deposited by the Company, into its bank account with PNB. The same got cleared on 17.11.2011. This loan was eventually transferred to M/s Vinamra Enterprises & Nav Bharat Nirman Co.(JV) through cheque No.597968, which was cleared on 22.11.2011. The repayment of this loan, through EMIs of Rs.4,03,139/- was being made through bank account of Nav Bharat Nirman Company (proprietorship concern of the assessee) with PNB. From the above sequence of events, it is crystal clear that it is not a case of diversion of accumulated profits as loans, so as to be treated Ajay Bakliwal vs. ACIT as Deemed dividend u/s 2(22)(e) in the hands of the assessee. It is a genuine bonafide transaction of accommodation, not having any bearing on the profits of the Company. The company got involved only because the bankers had issued the cheque in it’s name. No monetary benefit has accrued to the assessee. So, it is abundantly clear that the impugned amount has not been diverted from accumulated profits of the company, so as to be held as deemed dividend. Further, as regards loan of Rs.6,76,000/- to Nav Bharat Nirman Co. (proprietory concern of the assessee), it is a business transaction between the Company and Nav Bharat Nirman Co. The two have accommodated each other. It may further be mentioned that Nav Bharat Nirman Co. has given a loan of Rs.50,10,388/- which is appearing as Unsecured loan in the books of M/s Millenium Technocrat Colonisers Pvt. Ltd. As a matter of fact, the Company had made a repayment against the outstanding loan from Nav Bharat Nirman Company. The audited books of the assessee for FY 2010-11 and 2011-12 vouch this fact. Apart from this, the assessee, Shri Ajay Bakliwal has also given an unsecured loan of Rs.3,80,644/- to M/s Millenium Technocrat Colonisers Pvt. Ltd. during the year, as is evident from the Balance sheet of the assessee. In view of the above legal and factual position, the addition sustained by the CIT(A) may kindly be set aside.”

“1. Introduction The present submission addresses the following grounds raised by the Appellant:

Ajay Bakliwal vs. ACIT 1. Ground No. 1: That the reassessment proceedings initiated under Section 148 of the Income Tax Act, 1961, based on an audit objection raised by the Internal Audit Party (IAP), are invalid.

2. Ground No. 2: That the addition of ₹44,62,938/- under Section 2(22)(e) of the Income Tax Act, treating certain transactions as deemed dividend, is erroneous.

3. Ground No. 3: That the Ld. CIT(A) erred in sustaining the said addition without duly considering the submissions made by the Appellant. The Revenue submits that the reassessment proceedings are valid, the addition made under Section 2(22)(e) is justified, and the order of the Ld. CIT(A) deserves to be upheld.

Ajay Bakliwal vs. ACIT • The Appellant has not provided evidence disproving his substantial interest in the entities receiving loans.

2. Entries in Books of Accounts: • The loan entries are duly recorded in the books of M/s Millenium Technocrat Colonizers Pvt. Ltd. and the recipient entities. • The claim of error by the accountant is unsupported by documentary evidence.

3. Absence of Commercial Rationale: • No business rationale has been provided for the advances. In the absence of such justification, the AO was justified in treating the amounts as deemed dividends under Section 2(22)(e). 3.4. Judicial Precedents Supporting Revenue's Stand • CIT v. Mukundray K. Shah [(2007) 290 ITR 433 (SC)]: The Supreme Court held that advances to concerns in which a shareholder has substantial interest are covered under Section 2(22)(e). • CIT v. P.K. Abubucker [(2003) 259 ITR 507 (Mad)]: The burden of proving that a transaction is a business advance and not a loan lies on the assessee. 3.5. Errors in the Appellant's Arguments • The Appellant's claim that the loans were taken by him in his individual capacity is contradicted by the books of accounts of M/s Millenium Technocrat Colonizers Pvt. Ltd., which record the amounts as loans/advances to the recipient entities. • The repayment of EMIs by the Appellant does not alter the nature of the original transaction.

2. Deemed Dividend under Section 2(22)(e): • The transactions between the companies and the recipient entities were correctly treated as deemed dividends by the AO. • The Appellant has failed to prove that these were genuine business advances.

Ajay Bakliwal vs. ACIT 3. Order of the Ld. CIT(A): • The Ld. CIT(A) has correctly upheld the reassessment proceedings and the addition under Section 2(22)(e). The Appellant's objections are unsupported by facts and legal precedents. 5. Prayer In light of the above submissions, the Revenue respectfully prays that:

1. 1. The reassessment proceedings initiated under Section 148 be upheld as valid and in accordance with the law. The addition of ₹44,62,938/- under Section 2(22)(e) be upheld, as the 2. Appellant has failed to disprove the findings of the AO.

3. The appeal of the Appellant be dismissed, and the order of the Ld. CIT(A) be upheld.

4. Any other relief deemed fit in the interest of justice may also be granted.

On the legal issue, the Ld. DR has stated that there is no procedural lapse as mentioned by the appellant. Your Honor, I would like to restrict my argument to only a single issue and that is not providing of the reasons till the completion of assessment. After filing of the return, the assessee was entitled to get a copy of the reasons recorded for reopening of the case. The Ld.CIT(A) has adjudicated on this issue on page-37 of his order. He has held that no demand for copy of reasons was made prior to completion of assessment. It was provided after the assessment, when asked for and no prejudice is caused by not providing the reasons. Your Honors, different judicial forums, time and again have reiterated that copy of reasons for reopening the case along with material relied upon by the AO has to be invariably provided to the assessee after he files his return subsequent to the notice issued u/s 148. The relevant case laws on the issue have already been mentioned in the written submission filed and therefore the same are not being reiterated. Coming on facts of the case, the actual facts are that the assessee Shri Ajay Bakliwal, had been sanctioned a loan Rs. 2,70,00,000/- by ICICI Bank Ltd. The Bank insisted that the Company, viz. Millenium Technocrat Colonizers Pvt. Ltd. along with other directors of the Company, be made the co-applicants. The Bank, Ajay Bakliwal vs. ACIT though sanctioned the loan to Ajay Bakliwal, but for technical reasons, issued the cheque favoring Millenium Technocrat Colonizers Pvt. Ltd. The Company acted only as a conduit for the purpose. It immediately transferred the loan amount to the assessee. The Loan sanction letter and the Repayment schedule in the name of Ajay Bakliwal, substantiate this fact. Further, the EMIs of the loan were paid by the assessee and not the Company. The accountant of the Company gave an improper treatment to the transaction. Instead of passing a Net entry squaring up both the accounts, the ICICI Loan A/c and Vinamra Enterprises & Nav Bharat Nirman Co.(JV), the accountant opened both the accounts and kept on continuing with it. The Company neither paid the EMI nor bore the interest or other incidental charges pertaining to the said loan. The relevant ledger accounts had been enclosed in the Paper book given at the time of filing written submission. So, it is clearly not a case of any loan or advance provided by the Company to a concern in which the share holder is a partner having substantial interest. The Ld. DR has emphasized on the entries in the books of accounts. The entries in the books of accounts are not sacrosanct for drawing any inference, as held by a number of Judicial forums- • H.M Kashiparekh & Co. Ltd. v. Commissioner of Income-tax [1960] 39 I.T.R 706 (Bom.):

This case reiterated that while mercantile accounting provides prima facie evidence of income accrual, it is not definitive. Courts must examine the substance over form, especially when discrepancies exist between account entries and actual transactions. • Commissioner of Income-Tax v. Shoorji Vallabhdas and Co. [1959] 36 I.T.R 25 (Bom.):

The Bombay High Court decision elucidated that the accrual of income is not solely determined by book entries. The court emphasized that a credit entry under the mercantile system does not conclusively establish that income has accrued, especially if there is evidence to the contrary. • Commissioner Of Income-Tax, Gujarat II v. Western India Engineering Co.[1970] 77 ITR 165(Guj.)

The Gujarat High Court held that while book entries under the mercantile system provide an initial indication of income accrual, they are not conclusive. The court emphasized that additional evidence and factual circumstances must be scrutinized to ascertain the true nature of income. The Court gave precedence to Substance over form by observing that a legal principle that prioritizes the actual substance and economic reality of transactions over their formal legal structure should be considered, which ensures that tax assessments are based on the true nature of transactions rather than their superficial characteristics.

In the instant case, there is direct evidence that the loan has been taken by the assessee from the Bank and not from the Company, and substance over form should be given precedence. In view of the above facts, no case for deemed dividend in the hands of the assessee is made out.

Now, coming to the loan of Rs.6,76,000/- stated to be given by the Company to Nav Bharat Nirman Co., the balance sheet of the Company clearly shows that Unsecured loans of Rs.50,10,388/- has been taken by the Company from Nav Bharat Nirman Co. It was not a loan taken but was a repayment made against the loan. The AO as well as the CIT(A) erred in ignoring this fact. Considering only a part of the Audit report, the addition was made and sustained. Your Honor's attention is drawn to the copy of ledger A/c of Nav Bharat Nirman Co. appearing at page-29 of the paper book, which would dispel the clouds. Again, it is clear that no loan was given by Millenium Technocrat Colonizers Pvt. Ltd. to Nav Bharat Nirman Co. so as to be treated as Deemed dividend u/s 2(22)(e) of the Act.

In view of the above facts, judicial decisions and supporting documents, it is prayed that the addition to the extent of Rs.44,62,938/- sustained by the CIT(A) may kindly be deleted.”

S.No. Particulars Page No.

11. Copy of ledger A/c Nav Bharat Nirman Company in the books of Vinamra 30-32 Enterprises 12. Copy of acknowledgement of submission filed to CIT(A) on 24.09.24 33 submission so filed vehemently argued that the assessee has taken loan from ICICI Bank. Sanction letter was placed on record at page 12 of the paper book. That loan was sanctioned by the bank in the name of the applicant and Mr. Kiran Singh, Usha Jain and Millenium Technocrat & Colonizers Private Limited were co applicant of the loan. The loan was disbursed to the company and in turn was transferred to the assessee and therefore, the source needs to be considered. It is not the loan out of the accumulated profit of that company it was the loan wherein the assessee is applicant and the other three were co-applicant. This aspect as argued were not considered even though all the material to that effect was placed on record. The assessment in this case was completed thereafter based on the Internal Audit Party observation the case was re-opened by issue of notice u/s. 148 of the Act and thereby the same was abated on account of the search. The addition so made in the case was on the transaction already on record and not based on any incriminating material found in the search and therefore, considering that aspect of the material also no addition is maintainable considering the decision of the apex court that in the case of search assessment addition can only be made based on the incriminating material found. on record. The bench noted that the ground no. 1 raised by the assessee challenge the order on the legal ground and that of ground no. 2 & 3 deals with the sustaining addition of Rs. 44,62,938/- u/s. 2(22)(e) of the Act.

We would like to take up ground no. 2 & 3 first. The brief facts related to the disputes are that a search & seizure operation under section 132(1) of the Act was carried out on 07.09.2017 at the various premises of ‘Resonance Group, Kota’ to which the assessee belongs. In this case earlier the assessee had filed his return of income u/s 139 of the Act on 30.09.2012 at the total income of Rs. 53,45,910/- and assessed u/s 143(3) at the total income of Rs. 81,36,160/- and after appeal effect u/s 250 total income of the assessee was finally determined at Rs. 68,93,354/-.

Thereafter notice u/s 148 was issued on 18.03.2017 which was abated vide order dated 27.12.2017 as there was search conducted and the case of the assessee covers under that search.

Pursuant that action and as the case of was pending based on the re- opened notice ld. AO issued notices and called for details which were filed by the assessee. Ld. AO while going through the balance sheet as on 31.03.2012 of Millenium Technocrat Colonisers Pvt Ltd, noted that the said company has shown loan & advance given at Rs. 6,76,000/-to Nav Bharat Nirman Co. The assessee is one of the directors of the above company and he has substantial interest in the concern to which advances were made, as M/s Nav Bharat Nirman Co. is a proprietary concern of Shri Ajay Bakliwal and he is also a partner in M/s Vinarma Enterprises and Nav Bharat Nirman Co. Hence, consider that for those transactions provisions of section 2(22)(e) are applicable on the advances so given for an amount of Rs.

2,72,26,500/-. On that observation ld. AO issued a show cause notice to the assessee on 14.12.2019. The assessee submitted a reply on 20.12.2019, wherein he stated that these transactions are business transactions between the group companies having similar nature of business, hence provisions of section 2(22)(e) were not applicable as it involves the loan taken as from bank and in that the assessee was one of the applicant. Ld. AO considered the reply of the assessee but found not satisfactory and thereby he quoted the provision of section 2(22)(e) of the Act and stated that since the assessee is director in Millenium Technocrat Colonisers Pvt Ltd holding 25.93% of shares and proprietor in M/s Nav Bharat Nirman Co. and partner in Joint venture M/s Vinarma Entreprises and Nav Bharat Nirman Co., the company in which the assessee is director has provided loans to the joint venture and proprietor concern in which he is partner and transaction in terms of provision of section 2(22)(e) of the Act. Ld. AO relies on the decision of CIT vs Mukundray K Shah [2007] 160 Taxman 276 (SC) considered that the loan provided by the company at Rs. 2,72,26,500/- (6,76,000 + 2,65,50,500) as income of the assessee as deemed dividend as per provision of section 2(22)(e) of the Act.

When the matter carried before the ld. CIT(A) relied upon Explanation 2, of section 2(22)(e) of the Act and stated that considering the facts of the case only the profits of the company up to the date of distribution or payment under section 2(22)(e) of the Act shall be considered as accumulated profits and accordingly he hold that the ld. AO shall verify the claim of the assessee that the accumulated profits on the date of loan were only Rs. 44,62,932/. If found correct, the addition is to be limited to that amount of Rs. 44,62,932/-. However, if the amount of accumulated profits is more than this amount then the addition is to be confirmed to the number of accumulated profits as on the date of giving loan. The remaining amount of money made by the AO is not found to be sustainable in view of the provisions of the Income Tax Act.

The assessee argued that even the sustained addition to the extent of the profit of the company is required to be deleted because the assessee that contention the assessee submitted that a loan from ICICI Bank was obtained. Sanction letter of that loan placed on record at page 12 of the paper book, loan sanction letter reveals that the assessee got sanctioned the bank loan in his name as applicant and Mr. Kiran Singh, Usha Jain and Millenium Technocrat & Colonizers Private Limited were co applicant of the loan. The loan was disbursed to the company and in turn was transferred to the assessee and therefore, the source needs to be considered as from the loan and not from the accumulated profit. The bench noted that factual aspect of the assessee which was submitted in the form of paper book. The contention raised by the assessee were not disputed by the revenue. Since that information is know we analysis this contention as under :

As is evident from the above sanction letter that loan was sanctioned at Rs. 2,70,00,000/- vide cheque no. 110471 and 110472. The said cheques were deposited into the bank account of the Millenium Technocraft Colonisers Private Limited [ page 18 of the paper book ] which shows that loan was in the name of the assessee but the company was co-applicant.

The relevant page of the bank statement reads as under:

As is evident from the above bank statement that money so credited in the account of the company on 17.11.2011 is the credit represented by cheque no. 110471 which is reflected in the sanction letter in the name of Shri Ajay Bakliwal (assessee) as referred at page 12 of the paper book [scanned herein above]. Thus, when the money so given to the assessee from the account of the company Millenium Technocraft Colonisers Private Limited is provision of section 2(22)(e) of the Act. Therefore, we see no reason to sustain the addition even to the extent of accumulated profit as observed by ld. CIT(A). Based on that observation ground no. 2 & 3 raised by the assessee is allowed.

In the result, the appeal of the assessee is allowed.

Order pronounced in the open court on 11/04/2025.

Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 11/04/2025 *Ganesh Kumar, Sr. PS आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Ajay Bakliwal, Kota 2. izR;FkhZ@ The Respondent- ACIT, Central Circle, Kota Ajay Bakliwal vs. ACIT 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 1275/JP/2024) 6. vkns'kkuqlkj@ By order,

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