Rajesh Pagaria Vs I.T.O. (ITAT Kolkata)
As found by the A.O. from the cash flow statement furnished by the assessee, the assessee had received total amount of Rs. 28,96,502/- from M/s. Anand Vinayak Coalfield Ltd. According to the A.O., the said amount received by the assessee was in the nature of loans and advances and since the provisions of section 2(22)(e) related to deemed dividend were applicable, he invoked the same and added the amount of Rs. 28,96,502/- to the total income of the assessee by treating the same as deemed dividend. On appeal, the Ld. CIT(A) confirmed the addition made by the A.O. on this issue.
We have heard the arguments of both the sides on this issue and also perused the relevant material available on record. The learned counsel for the assessee has invited our attention to the relevant ledger account extract given at page no 38 of the Paper Book and submitted that the account with M/s. Anand Vinayak Coalfield Ltd. was in the nature of current account and not in the nature of loans or advances. By relying on the decision of Co-ordinate Bench of this Tribunal in the case of ITO vs Smt. Gayatri Chakraborty (ITA No. 151/Kol/2013 dated 30.10.2015), he contended that the provisions of section 2(22)(e) are not applicable where the relevant transactions are in the nature of current account transactions and not loans and advances. The learned DR, on the other hand, has contended that the relevant transactions with M/s. Anand Vinayak Coalfield Ltd. were categorised by the assessee himself as loan transactions and the assessee, therefore, cannot change his stand at this stage to claim the said transactions as current account transactions. In our opinion, the nomenclature by the assessee alone cannot determine the exact nature of relevant transactions and it is required to be ascertained from the facts and record. I, therefore, set aside the impugned order of the Ld. CIT(A) on this issue and restore the matter to the file of the A.O. for deciding the same afresh in the light of the decision of Tribunal in the case of Smt. Gayatri Chakraborty (supra) after verifying the exact nature of transactions from the relevant facats and record.
