- (1.) This appeal under Section 260A of the Income Tax Act, 1961 (Act) by the assessee has arisen from a judgment of the Income Tax Appellate Tribunal (Tribunal) dated 25 July 2014.
(2.) The assessment year to which the appeal relates is AY 2007-08.
(3.) The Assessing Officer made an assessment under Section 143 (3) of the Act on 24 December 2009. The Assessing Officer made an addition of Rs.12,50,455.00 to the total income of the assessee treating it to be a deemed dividend within the meaning of Section 2 (22) (e) of the Act. In appeal, the Commissioner (Appeals), by an order dated 29 March 2011, deleted the addition. An appeal was filed by the Revenue before the Tribunal. The Tribunal allowed the appeal by its judgment dated 29 November 2013. The assessee thereafter moved this Court under Section 260A of the Act. By a judgment dated 17 April 2014 in Kishori Lal Agrawal v Commissioner of Income Tax, 2014 364 ITR 158, a Division Bench of this Court restored the proceedings back to the Tribunal with the following observations: "...The first ingredient of exclusionary clause (ii) of section 2 (22)(e) is that the advance or loan must be made to the shareholder by a company in the ordinary course of its business. The first ingredient does not require that the company must be engaged in money lending business. Moreover, where the advance or loan was made in the ordinary course of the business of the company, the fact that the lending of surplus funds is not part of the main object but is at the same time permissible as an ancillary object, would not detract from the loan or advance being made in the ordinary course of its business. The second ingredient, undoubtedly, requires that the lending of money should be a substantial part of the business of the company. What is a substantial part of the business of the company has to be determined as a matter of fact.";