ITO, New Delhi v. M/s. Ramkishore Nagarmal Marketing Pvt. Ltd., Delhi

ITA 2639/DEL/2013 | 2009-2010
Pronouncement Date: 04-04-2014 | Result: Dismissed

Appeal Details

RSA Number 263920114 RSA 2013
Assessee PAN AACCR3488E
Bench Delhi
Appeal Number ITA 2639/DEL/2013
Duration Of Justice 11 month(s) 2 day(s)
Appellant ITO, New Delhi
Respondent M/s. Ramkishore Nagarmal Marketing Pvt. Ltd., Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 04-04-2014
Appeal Filed By Department
Order Result Dismissed
Bench Allotted F
Tribunal Order Date 04-04-2014
Date Of Final Hearing 03-04-2014
Next Hearing Date 03-04-2014
Assessment Year 2009-2010
Appeal Filed On 02-05-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DELHI BEFORE SH. R. S. SYAL AM AND SH. A. T. VARKEY JM ITA NO. 2639/DEL/2013 : ASS TT. YEAR : 2009-10 INCOME TAX OFFICER WARD 15(2) ROOM NO. 213 C. R. BUILDING NEW DELHI-110002 VS M/S RAMKISHORE NAGARMAL MARKETING P. LTD. 4032 CHAWARI BAZAR DELHI-110006 (APPELLANT) (RESPONDENT) PAN NO. AACCR3488E ASSESSEE BY : NONE REVENUE BY : MS ME ENAKSHI VOHRA DATE OF HEARING : 3.4.2014 DATE OF PRONOUNCEMENT : 4.4.2014 ORDER PER R. S. SYAL AM: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) ON 7.2.2013 IN RELATION TO THE ASSESSME NT YEAR 2009-10. 2. THE ONLY ISSUE RAISED IN THIS APPEAL IS AGAINST THE DELETION OF ADDITION MADE BY THE A.O U/S 2(22)(E) OF THE INCOME -TAX ACT 1961. THE REVENUE IS FURTHER AGGRIEVED THROUGH GROUND NO. 2 T HAT THE DECISION OF HONBLE DELHI HIGH COURT RELIED ON BY THE LD. CIT( A) FOR ALLOWING RELIEF HAS NOT BEEN ACCEPTED BY THE REVENUE AND THE MATTER IS SUB JUDICE BEFORE THE HONBLE SUPREME COURT. ITA NO. 2639/DEL/2013 RAMKISHSORE NAGARMAL MARKETING P. LTD. 2 3. BRIEFLY STATED THE FACTS OF THE CASE THAT THE AS SESSEE RECEIVED UNSECURED LOAN OF RS. 2 02 97 299/- FROM M/S R. K. S GLOBAL AGENCIES PVT. LTD. THE ASSESSING OFFICER OBSERVED THAT THERE WERE COMMON SHAREHOLDERS HOLDING SHARES TO THE TUNE OF 25% IN T HE ASSESSEE COMPANY AS WELL AS THE LENDER COMPANY M/S R. K. S. GLOBAL AGENCIES PVT. LTD.. ON A PERUSAL OF THE BALANCE SHEET OF THIS COMPANY THE ASSESSING OFFICER NOTICED THAT THERE WERE RESERVES AND SURPLUS TO THE TUNE OF RS. 32 25 858/-. CONSIDERING THE PROVISIONS OF SEC. 2(2 2)(E) HE MADE ADDITION OF RS. 32.25 LAC BY CONSIDERING THE AMOUNT RECEIVED BY THE ASSESSEE AS DEEMED DIVIDEND U/S 2(22)(E) OF THE ACT . THE LD. CIT(A) RELYING ON THE JUDGMENT OF THE HONBLE JURISDICTION AL HIGH COURT IN CIT VS ANKITECH PVT. LTD. AND OTHERS (2011) 242 CTR (DE LHI) 129 ALLOWED THE RELIEF AGAINST WHICH THE REVENUE HAS COME UP I N APPEAL BEFORE US. 4. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E AND PERUSED THE RELEVANT MATERIAL ON RECORD. THERE IS NO APPEAR ANCE FROM THE SIDE OF THE ASSESSEE DESPITE NOTICE. AS SUCH WE ARE PROCEED ING TO DISPOSE OF THIS APPEAL EX PARTE QUA THE ASSESSEE. IT IS AMPLY BORNE OUT FROM THE ASSESSMENT ORDER THAT THE ONLY BASIS WITH THE ASSES SING OFFICER FOR INVOKING SEC. 2(22)(E) OF THE ACT IN THE HANDS OF T HE ASSESSEE IS THREE SHAREHOLDERS COMMON TO THE ASSESSEE AS WELL AS M/S R. K. S. GLOBAL AGENCIES PVT. LTD. IT IS UNDISPUTED THAT THE ASSESS EE IS NOT A SHAREHOLDER IN R. K. S. GLOBAL AGENCIES PVT. LTD. AND VICE VERSA. THE QUESTION AS TO WHETHER IN SUCH CIRCUMSTANCE THE PROVISIONS OF SECT ION 2(22)(E) CAN BE ITA NO. 2639/DEL/2013 RAMKISHSORE NAGARMAL MARKETING P. LTD. 3 INVOKED IS NO MORE RES INTEGRA IN VIEW OF THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT TAKEN NOTE OF THE LD. CIT (A) IN ANKITECH PVT. LTD. (SUPRA). IT IS RELEVANT TO NOTE THAT THE HONBLE DELHI HIGH COURT HAS REITERATED THIS VIEW IN A LATER JUDGMENT IN CIT VS MCC MARKETING PVT. LTD. (2012) 340 ITR 350 (DELHI) . EARLIER THE SPECIAL BENCH OF THE TRIBUNAL IN ACIT VS BHAUMIK COLOUR PVT. LTD. (2009) 27 SOT 270 (MUM) (SB) HAS ALSO HELD TO THE SAME EXTENT WHICH ORDER NOW S TANDS AFFIRMED BY THE HONBLE BOMBAY HIGH COURT IN CIT VS UNIVERSAL MEDICARE (P) LTD. (2010) 340 ITR 263 (BOM). NOTHING HAS BEEN BROUGHT ON RECORD TO INDICATE THAT THE HONBLE SUPREME COUR T HAS REVERSED OR MODIFIED ANY OF THE AFORENOTED JUDGMENTS IN ASSESSE ES FAVOUR. IN VIEW OF THE ABOVE DISCUSSION IT IS CRYSTAL CLEAR THAT TH ERE IS UNANIMITY IN THE APPROACH OF THE HONBLE HIGH COURTS AND THE TRIBUNA L BEING THE NON- APPLICABILITY OF SEC. 2(22)(E) UNLESS THE LENDER CO MPANY IS A REGISTERED SHAREHOLDER IN THE BORROWER COMPANY. WE THEREFORE APPROVE THE IMPUGNED ORDER TO THIS EXTENT. 5. IN THE RESULT THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 4/4/2014. SD/- SD/- (A. T. VARKEY) (R. S. SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBE R DATED: 4/4/2014 *SUBODH* ITA NO. 2639/DEL/2013 RAMKISHSORE NAGARMAL MARKETING P. LTD. 4 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR DATE INITIAL 1. DRAFT DICTATED ON 3.4.2014 PS 2. DRAFT PLACED BEFORE AUTHOR 3.4.2014 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. *