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BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER
November, 21st 2013
                   IN THE INCOME TAX APPELLATE TRIBUNAL,
                         MUMBAI BENCH "E", MUMBAI

           BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND
                 DR. S.T.M. PAVALAN, JUDICIAL MEMBER

Sr     ITA No.         A.Y.     Appellant            Address        Respondent       PAN
1&     ITA No.       2008-09   Shri Sunil P.      Shri Prakash     Asst. CIT        ABNPM
 2   5402/M/2011                 Mantri          Jhunjhunwala,     Central Circle   4825 D
          &                                        C.A. 5, Jolly   (29)
       ITA No.       2009-10                    Bhawan No. 2 Gr.   Mumbai.
     5407/M/2011                                  Floor, 7, New
                                                  Marine Lines,
                                                   Churchgate,
                                                   Mumbai-20


3&     ITA No.       2008-09   Asst. CIT           G-1, Court      Shri Sunil P.    ABNPM
 4   5702/M/2011               Central Circle      Chambers,         Mantri         4825 D
          &                    (29)             Ground Floor, V.
     5703/M/2011     2009-10   Mumbai.          Thakersey Marg,
                                                35, New Marine
                                                     Lines,
                                                  Churchgate,
                                                    Mumbai

5      ITA No.       2008-09   Asst. CIT           G-1, Court        M/s. Sunil     AAFCM
     5689/M/2011               Central Circle      Chambers,           Mantri       0504 P
                               (29)             Ground Floor, V.   Buildtech Pvt.
                               Mumbai.          Thakersey Marg,          Ltd
                                                35, New Marine
                                                     Lines,
                                                  Churchgate,
                                                    Mumbai
6      ITA No.       2008-09   Asst. CIT           G-1, Court      Sunil Mantri     AAFCM
     5682/M/2011               Central Circle      Chambers,       Trinity          0168 F
                               (29)             Ground Floor, V.   Projects P.
                               Mumbai.          Thakersey Marg,    Ltd.
                                                35, New Marine
                                                     Lines,
                                                  Churchgate,
                                                    Mumbai
7      ITA No.       2009-10   Asst. CIT           G-1, Court      Mantri Power     AAFCM
     5704/M/2011               Central Circle      Chambers,           Ltd.         0508 B
                               (29)             Ground Floor, V.
                               Mumbai.          Thakersey Marg,
                                                35, New Marine
                                                     Lines,
                                                  Churchgate,
                                                    Mumbai
8      ITA No.       2009-10   Asst. CIT           G-1, Court      Sunil Mantri     AAFCM
     5681/M/2011               Central Circle      Chambers,       Griha Nirman     2227 B
                               (29)             Ground Floor, V.      P. Ltd.
                               Mumbai.          Thakersey Marg,
                                                35, New Marine
                                                     Lines,
                                                  Churchgate,
                                                    Mumbai
                                               2          ITA Nos. 5402, 5407, 5689, 5682, 5702, 5703, 5704 &
                                                                                               5681/Mum/2011
                                                                        C.O. Nos.132, 134, 135 & 136/M/2012
                                                                                  M/s. Sunil P. Mantri & others
                                                                      Assessment Year: 2008-09 & 2009-10


9          C.O.           2009-10   Mantri Power       Shri Prakash        Asst. CIT          ABNPM
      132/M/2012                      Limited         Jhunjhunwala,        Central Circle     4825 D
     (Arising Out of                                    C.A. 5, Jolly      (29)
         ITA No.                                     Bhawan No. 2 Gr.      Mumbai.
      5704/M/11)                                       Floor, 7, New
                                                       Marine Lines,
                                                        Churchgate,
                                                        Mumbai-20
10         C.O.           2008-09   Sunil Mantri       Shri Prakash        Asst. CIT          AAFCM
      134/M/2012                       Trinity        Jhunjhunwala,        Central Circle     0168 F
     (Arising Out of                Projects Ltd.       C.A. 5, Jolly      (29)
         ITA No.                                     Bhawan No. 2 Gr.      Mumbai.
      5682/M/11)                                       Floor, 7, New
                                                       Marine Lines,
                                                        Churchgate,
                                                        Mumbai-20
11         C.O.           2009-10   Sunil Mantri       Shri Prakash        Asst. CIT          AAFCM
      135/M/2012                    Griha Nirman      Jhunjhunwala,        Central Circle     2227 B
     (Arising Out of                   P. Ltd.          C.A. 5, Jolly      (29)
         ITA No.                                     Bhawan No. 2 Gr.      Mumbai.
      5681/M/11)                                       Floor, 7, New
                                                       Marine Lines,
                                                        Churchgate,
                                                        Mumbai-20
12         C.O.           2008-09    M/s. Sunil        Shri Prakash        Asst. CIT          AAFCM
      136/M/2012                        Mantri        Jhunjhunwala,        Central Circle     0504 P
     (Arising Out of                Buildtech Pvt.      C.A. 5, Jolly      (29)
         ITA No.                          Ltd        Bhawan No. 2 Gr.      Mumbai.
      5689/M/11)                                       Floor, 7, New
                                                       Marine Lines,
                                                        Churchgate,
                                                        Mumbai-20


                                Assessee by     :    Shri Prakash Jhunjhunwala
                                 Revenue by     :    Shri Girija Dayal

                            Date of hearing  : 22.08.2013
                       Date of Pronouncement : 14.11.2013

                                         ORDER

PER BENCH:

      These bunch of 12 appeals, cross appeals and cross objections filed by the
assessees and the revenue as aforementioned in the cause list are directed against the
order of the Ld.CIT(A)-40, Mumbai all dated 31.05.2011 for the Assessment Years 2008-
09 & 2009-10. Since the issues involved in all these appeals, cross appeals and cross
objections are common and identical, the same are disposed off by this common order.
                                                    3         ITA Nos. 5402, 5407, 5689, 5682, 5702, 5703, 5704 &
                                                                                                   5681/Mum/2011
                                                                            C.O. Nos.132, 134, 135 & 136/M/2012
                                                                                      M/s. Sunil P. Mantri & others
                                                                          Assessment Year: 2008-09 & 2009-10



2.         The first common issue in all the appeals, cross appeals and the cross objections
relates to the decision of the Ld.CIT(A) on the addition of deemed dividend u/s 2(22)(e)
of the Income Tax Act made in the assessment. The relevant facts are that one Shri Sunil
P. Mantri, an individual was a shareholder holding shares of 85.50% in M/S Sunil Mantri
Reality Ltd, which made advances/loans to various concerns in which Shri Sunil P. Mantri
was holding shares. The details of the share holding pattern of Shri Sunil P. Mantri in
various concerns to which M/S Sunil Mantri Reality Ltd made the advances/loans during
the years under consideration and the respective amounts are as below:-




     Sl         Concerns to which         Shareholding   A.Y. 2008-09              A.Y. 2009-10
     No.      loans/advances made          pattern of
                                            Sunil P.
                                             Mantri
     1        M/s. Mantri Power Ltd.      49.95%         Rs. 60,22,308/-           Rs. 1,28,07,500/-
     2        M/s. Sunil Mantri           50%            Rs. 3,87,38,299/-         -
              Buildtech P. Ltd.
     3        M/s. Sunil Mantri Trinity   50%            Rs. 21,15,00,000/-
              Projects P. Ltd.                                                     -
     4        M/s. Mantri Lifestyle       50%            Rs.1,35,609/-             -
              Developers P. Ltd.
     5        M/s. Mantri Properties P.   50%            -                         Rs.37,31,757/-
              Ltd.
     6        M/s. Sunil Mantri Griha     50%            -                         Rs.58,68,903/-
              Nirman P. Ltd
              Total                                      Rs.25,63,96,216/-         Rs.2,19,08,160/-



In the assessment framed u/s 143(3) read with section 153A, the AO after observing the
aforementioned shareholding pattern, invoked section 2(22)(e) of the Act and thereby
treated the said amounts as deemed dividend in the hands of common share holder, Sunil
P. Mantri as he was holding substantial control over the lender concern, M/S Sunil Mantri
Reality Ltd. The said additions of the total amounts advanced to various concerns have
been made in the hands of Sunil P. Mantri on substantive basis. The amounts received by
the respective concerns were added on protective basis in the hands of the said concerns
respectively.
                                             4        ITA Nos. 5402, 5407, 5689, 5682, 5702, 5703, 5704 &
                                                                                           5681/Mum/2011
                                                                    C.O. Nos.132, 134, 135 & 136/M/2012
                                                                              M/s. Sunil P. Mantri & others
                                                                  Assessment Year: 2008-09 & 2009-10



3.    On appeal, the Ld.CIT(A) confirmed the additions made in the hands of Sunil
P.Mantri on account of the loans/advances made to various concerns. However, for the
a.y 2008-09, the Ld.CIT(A) deleted the addition made on the amount received by
M/s.Sunil Mantri Trinity Projects Pvt. Ltd since Sunil P.Mantri was not a common
shareholder having substantial interest at the time of advancing the amount by Sunil
Mantri Reality P. Ltd to Sunil Mantri Trinity Projects P. Ltd. For A.Y. 2009-10, the
Ld.CIT(A) directed the AO to restrict the addition after deleting the amounts earlier repaid
by the said three group of concerns to M/s. Sunil Mantri Reality Ltd. In the process, the
Ld.CIT(A) has also restricted the addition made in the hands of Sunil P.Mantri to the
extent of accumulated profits of the lender concern and thereby determined the addition
at Rs.3,75,54,438/- and Rs.1,13,89,110/- for the A.Ys 2008-09 and 2009-10 respectively.
On confirming the additions made in the hands of the common share holder, Sunil P.
Mantri, the Ld.CIT(A) deleted the additions made on the protective basis in the hands of
the recipient concerns.

4.    The assessee, Sunil P. Mantri in ITA No. 5402/Mum/2011 and ITA No.
5407/Mum/2011 respectively for the A.Ys. 2008-09 and 2009-10 has agitated the action
of the Ld. CIT(A) confirming the addition of deemed dividend u/s 2(22)(e) that have been
made in his case on substantive basis in respect of the loans/advances received by the
group of concerns from Sunil Mantri Reality Ltd.

4.1   The revenue, in the cross appeals in ITA No. 5702/Mum/2011 and 5703/Mum/2011
has agitated the action of the Ld. CIT(A) in taking the value of accumulated profit of the
lender concern for the purpose of restricting the additions made u/s 2(22)(e). In addition,
the revenue has also agitated the action of the Ld.CIT(A) in deleting the additions made
by the AO in respect of loan/advance received by Sunil Mantri Trinity Projects P. Ltd for
the A.Y 2008-09 and the sums repaid by the recipient concerns to the lender company for
the A.Y 2009-10.

4.2   In other four appeals filed by the revenue, the Department has challenged the
action of the Ld.CIT(A) deleting the addition made on protective basis in the hands of the
recipient concerns. The four cross objections filed by the assesses/recipient concerns
arising out of the said four appeals of the revenue relate to the claim of the assessees
that the concerns have received deposits from Sunil Mantri Reality Ltd. in the normal
                                              5        ITA Nos. 5402, 5407, 5689, 5682, 5702, 5703, 5704 &
                                                                                            5681/Mum/2011
                                                                     C.O. Nos.132, 134, 135 & 136/M/2012
                                                                               M/s. Sunil P. Mantri & others
                                                                   Assessment Year: 2008-09 & 2009-10



course of business and a further claim that refund of loan earlier paid by the assessees
does not pertain to the loans received during the year. The adjudication of the issues
raised in the 12 bunches of appeals, cross appeals and the cross objections are discussed
in the succeeding paragraphs.

5.     Firstly, as regards the addition made on substantive basis in the hands of Shri
Sunil P. Mantri, it is the contention of the assessee that Sunil Mantri Reality Ltd., has
made payments directly to the four group concerns and since no payment either directly
or indirectly made to the assessee, there is no individual benefit received by the assessee.
Further, Sunil Mantri Reality Ltd. has made payments to the said concerns in the normal
course of business wherein provisions of section 2(22)(e) shall not apply. It is also the
contention of the assessee that the MOU dated 15th May, 2007 evidences payments of
advances towards awarding of preferential contract to lender concern of any new project
that may arise in future by the recipient concerns. Alternatively, the Ld.AR has argued
that in case if the Bench arrives at a decision that Sunil P.Mantri's case falls within the
provisions of section 2(22)(e), in such an event, the addition is to be restricted only to the
extent of the accumulated profits of the lender concern up to March 31st of the previous
years relevant to the assessment years under consideration during which the
loans/advances have been made to various concerns. Per contra, it is the case of the
revenue that Sunil P. Mantri is the registered and beneficial owner of shares in Sunil
Mantri Reality Ltd. having more than 10% voting power and also has substantial interest
in the concerns to which the loans and advances have been made which clearly attracts
the provision of section 2(22)(e).

5.1    Having heard both the sides and perused the material on record, it is pertinent to
note that the case of the assessee, Shri Sunil P. Mantri clearly falls within the purview of
section 2(22)(e), which is evidenced by the share holding pattern of Shri Sunil P. Mantri
in the lending and receiving concerns in which the assessee respectively has substantial
control and substantial interest. Since, Shri Sunil P.Mantri is a common shareholder of
M/s. Sunil Mantri Realty Ltd. and its 3 group concerns, namely, M/s Mantri Power Ltd, M/s
Sunil Mantri Builtech Pvt Ltd and M/s Mantri Lifestyle Developers Pvt Ltd, it is difficult to
accept the argument of the Ld AR's that there is no benefit accruing to the account of the
assessee for the reason that he is a common shareholder having adequate control over all
                                             6        ITA Nos. 5402, 5407, 5689, 5682, 5702, 5703, 5704 &
                                                                                           5681/Mum/2011
                                                                    C.O. Nos.132, 134, 135 & 136/M/2012
                                                                              M/s. Sunil P. Mantri & others
                                                                  Assessment Year: 2008-09 & 2009-10



3 group concerns and he is entitled to receive all benefits that shall accrue, directly or
indirectly, to the said 3 group concerns. Thus, merely because the assessee, Sunil P.
Mantri has not received any sum directly from the lender concern M/s Sunil Mantri Realty
Ltd. or through above said 3 group concerns, it cannot be said that assessee has not
received any benefits from the transactions. The argument of the assessee that the
loans/advances have been made in the normal course of business is also not acceptable
as the assessee has not brought on record to prove the same. It is also not disputed that
the lender concern, M/s Sunil Mantri Reality Ltd is not engaged in the business of money
lending. The contention of the assessee that the MoU dated 15th May, 2007 evidences
payments of advances towards awarding of preferential contract to lender concern of any
new project that may arise in future by the recipient concerns, in our view, is hypothetical
in nature which lacks any evidentiary value as the MoU pertains to future projects, if any
which does not quantify any amounts of consideration. Also, it has not been proved that
the MoU has resulted in any such project or the parties have acted in furtherance of the
MoU. In view of the aforementioned discussions, we are of the considered opinion that
the Ld.CIT(A) has rightly decided that the case of Sunil P.Mantri clearly falls u/s 2(22)(e)
of the Act. However, we are inclined to accept the alternate arguments of the Ld.AR that
the additions are to be restricted only to the extent of the accumulated profits of the
lender concern up to March 31st of the previous years relevant to the assessment years
under consideration during which the loans/advances have been made to various
concerns. Therefore, as regards the additions made in the hands of Sunil P.Mantri for
assessment years 2008-09 and 2009-10, we direct the AO to restrict the additions based
on the accumulated profits of M/s Sunil Mantri Realty Ltd as on 31.03.2007 and
31.03.2008 respectively, corresponding to the loans/advances made for the relevant
assessment years i.e., 2008-09 and 2009-10.

5.1.1 Secondly, as regards the issue raised in the appeal of the Revenue in the case of
Sunil Mantri, for the assessment year 2008-09, agitating the decision of the Ld. CIT(A)
deleting the addition made on account of the loans/advance received by Sunil Mantri
Trinity Projects P. Ltd, we are of the considered opinion that the Ld. CIT(A) has correctly
done so since for the period during which the loans/advances have been made by Sunil
Mantri Reality Ltd does not fall during the period in which Sunil P. Mantri has been a
                                               7           ITA Nos. 5402, 5407, 5689, 5682, 5702, 5703, 5704 &
                                                                                                5681/Mum/2011
                                                                         C.O. Nos.132, 134, 135 & 136/M/2012
                                                                                   M/s. Sunil P. Mantri & others
                                                                       Assessment Year: 2008-09 & 2009-10



share-holder of the recipient concern as stated in para 7.12.2 of the order of the
Ld.CIT(A).

5.1.2 Thirdly, on the decision of the Ld.CIT(A) in deleting the additions made by the AO
in respect the sums repaid by the recipient concerns to the lender company for the A.Y
2009-10, we do not find Any infirmity in the said decision of the Ld.CIT(A) as the same is
in line with the ratio of the Hon'ble Bombay High Court in the case of P.K.Baddiani
reported in 76 ITR 369 which has been rightly relied by the Ld.CIT(A).




5.1.3 Fourthly, regarding the decision of the Ld. CIT(A) in restricting the addition to the
extent of accumulated profit of Sunil Mantri Reality Ltd., it is pertinent to note that it is an
accepted principle of law that the addition of deemed dividend u/s 2(22)(e) can be made
only to the extent of which the lender concern possesses accumulated profits. This
proposition is supported by a number of judicial decisions including the one in the case of
NCK Sons Exports P. Ltd. Vs. ITO reported in 102 ITD 311 (Mum). Therefore, we do not
find any infirmity in the decision of the Ld.CIT(A) on this count.

5.1.4 Fifthly, another common issue raised in the appeals of the assessee, Sunil P.
Mantri   and    the   respective   cross   appeals    of      the      Revenue         relates      to    the
disallowance/addition on account of notional interest in respect of the property located at
Ambey Valley, Lonawala and the allowability of interest expenses respectively. It is
observed that the AO estimated the gross annual value @ 7% of the cost of acquisition
and after allowing 30% standard deduction u/s 24(a), the AO determined the income
from house property. The same has been confirmed by the Ld.CIT(A). Having heard both
the sides and perused the material on record on this issue, it is pertinent to note that
when the assessee claims for a lower ALV, the assessee is duty bound to file municipal
valuation to substantiate his claim of lower value, which he has not discharged during the
assessment/appellate proceedings. Accordingly, we do not find any merit in the
contention of the Ld.AR that the estimation of gross annual value ought to have been
made as per the rent fixed by the municipal authority. In view of that matter, we do not
find any justifiable reason to interfere with the decision of the Ld.CIT(A) that the gross
rent estimated by AO @ 7% of cost of the property is reasonable. The fact that the
assessee has paid interest on borrowed capital is also not disputed. Therefore, we do not
                                              8        ITA Nos. 5402, 5407, 5689, 5682, 5702, 5703, 5704 &
                                                                                            5681/Mum/2011
                                                                     C.O. Nos.132, 134, 135 & 136/M/2012
                                                                               M/s. Sunil P. Mantri & others
                                                                   Assessment Year: 2008-09 & 2009-10



find any infirmity in the decision of the Ld.CIT(A) that the assessee is eligible for claim of
deduction in respect of interest paid.

5.1.5 Resultantly, (i) the additions confirmed by the Ld.CIT(A) u/s 2(22)(e) in the hands
of Sunil P. Mantri on the substantive basis for the assessment years 2008-09 & 2009-10,
subject to our direction that the additions made for the said assessment years is to be
restricted to the extent of the accumulated profits of M/s Sunil Mantri Realty Ltd as on
31.03.2007 and 31.03.2008 respectively, corresponding to the loans/advances made for
the relevant assessment years i.e., 2008-09 and 2009-10 (ii) the decision of the Ld.CIT(A)
deleting the addition made by the AO in the hands of Sunil P. Mantri on account of the
loans and advances received by Sunil Mantri Trinity Projects P. Ltd. for the assessment
year 2008-09 (iii) decision of the Ld.CIT(A) in deleting the additions made by the AO in
respect the sums repaid by the recipient concerns to the lender company for the A.Y
2009-10, (iv) the decision of the Ld.CIT(A) restricting the additions to the extent of the
accumulated profits of the lender concern (v) the decision of the Ld.CIT(A) that the gross
rent estimated by AO @ 7% of cost of the property interest in respect of the property
located at Ambey Valley, Lonawala is reasonable and (vi) the decision of the Ld.CIT(A)
that the assessee is eligible for claim of deduction in respect of interest paid are upheld.

6.     As regards the other four appeals filed by the revenue against the decision of the
Ld.CIT(A) resulting in the deletion of the additions made in the hands of the recipient
concerns on protective basis, we are of the considered view that the Ld.CIT(A) has
correctly relied on the decisions of Special Bench in the case of ACIT Vs. Bhaumik Colour
P. Ltd. reported in 27 SOT 270 (Mum) wherein it has been held that the intention behind
the provision of section 2(22)(e) is to tax dividend in the hands of share-holder. The
deeming provisions as it applies to the case of loans or advances by a concern to concern
in which its share-holder has substantial interest, is based on the presumption that the
loans or advance would ultimately be made available to the share-holder of the concern
giving the loans or advances. The intention of the legislature is therefore to tax dividend
only in the hands of the share-holder and not in the hands the concern. The said
proposition is supported by the decision of the Bombay High Court in the case of CIT Vs.
Universal Medicare P. Ltd. reported in 324 (ITR) 263 (Bom). Accordingly, the decision of
                                             9       ITA Nos. 5402, 5407, 5689, 5682, 5702, 5703, 5704 &
                                                                                          5681/Mum/2011
                                                                   C.O. Nos.132, 134, 135 & 136/M/2012
                                                                             M/s. Sunil P. Mantri & others
                                                                 Assessment Year: 2008-09 & 2009-10



the Ld. CIT(A) in deleting the additions made by the AO on protective basis in the hands
of the recipient concerns are upheld.

7.     Regarding the four cross objections filed by the recipient concerns arising out of
the four appeals of the Revenue, the same become infructuous as the decision of the
Ld.CIT(A) in deleting the addition made on protective basis in the hands of the four
concerns are upheld.

8.     In the result,
             (i) the appeals filed by the assessee, Sunil P.Mantri (ITA No.
             5402/M/2011 & ITA No. 5407/M/2011) are partly allowed.
             (ii) the cross appeals filed by the Revenue in the cases of Sunil P Mantri
             Ltd (ITA No. 5702/M/2011 & 5703/M/2011) are dismissed.
             (iii) the other four appeals filed by the Revenue (ITA No. 5689/M/2011,
             ITA No. 5682/M/2011, ITA No. 5704/M/2011 and ITA No. 5681/M/2011)
             in respect of the recipients concerns are dismissed.
             (iv) the cross objections filed by the assessees, the recipient concerns
             (C.O.132/M/2012,    C.O.    134/M/2012,     C.O.135/M/2012             and       C.O.
             136/M/2012) become infructuous and the same are dismissed.

     Order pronounced in the open court on this 14th day of November, 2013.


             Sd/-                                                Sd/-
       (P.M. JAGTAP)                                    (Dr. S.T.M. PAVALAN)
     ACCOUNTANT MEMBER                                    JUDICIAL MEMBER

Mumbai, Dated: 14.11.2013.
*Srivastava
Copy to: The Appellant
         The Respondent
         The CIT, Concerned, Mumbai
         The CIT(A) Concerned, Mumbai
         The DR "E" Bench

                                    //True Copy//
                                                       By Order

                                         Dy/Asstt. Registrar, ITAT, Mumbai.

 
 
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