IN THE HIGH COURT OF DELHI AT NEW DELHI 
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   ITA 1198/2011  
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 OXFORD SOFTECK PVT LTD                ..... Appellant 
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 Through Mr. Kaanan Kapur, Adv. 
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 versus 
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 ASST COMMISSIONER OF INCOME TAX      .... Respondent 
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 Through None 
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 CORAM: 
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 HON'BLE MR. JUSTICE SANJIV KHANNA 
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 HON'BLE MR. JUSTICE R.V.EASWAR 
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 O R D E R 
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      02.11.2011 
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 The appeal is entirely misconceived and does not have any merit. 
 In the assessment proceedings relating to the appellant company, the 
 Assessing Officer had made addition referring to provisions of 2(22)(e) 
 of the Income Tax Act, 1961 (Act, for short) as the appellant company had 
 given loan/advance of Rs.26,66,722/- to its Director, Naresh Kumar, who 
 holds 90% of the paid up share capital. 
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 2. On an appeal filed by the appellant company, the CIT(A) held that 
 no addition could be made in the hands of the appellant company. 
 Thereafter, he recorded as under : 
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 ?5.2 Therefore, respectfully following the ratio of the above judgments 
 on the issue, the impugned addition of Rs.45,48,330/- made by the AO in 
 the hands of the appellant company cannot be legally sustained as the 
 amount can be brought to tax only in the hands of the shareholder of the 
 lender company, i.e. sh. Naresh Kumar and not in hands of the appellant 
 company which is not a shareholder of the lender company. 
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 5.3 Considering the above, in the course of the appellate proceeding, 
 vide letter dated 29.10.2010 a notice under Explanation 3 of section 153 
 of the Act was issued by the undersigned to Sh. Naresh kumar, Director of 
 the appellant company to show cause why the said amount of Rs.45,48,330/- 
 should not be added in his personal hands instead of the hands of the 
 appellant company for A.Y.2005-06.  As mentioned above, the said notice 
 was sent by speed post from the I.P. Estate, New Delhi Post Office on 
 1.11.2010 bearing receipt no ED041138587IN.  The notice has not been 
 received back from the postal authorities, so it is presumed that the 
 same has been duly served.  However as mentioned earlier no reply has 
 been received to the above notice till date.  In view of the above, the 
 aforesaid addition in the hands of the appellant company stands deleted 
 and the AO is directed to add the said amount of Rs.45,48,330/- as deemed 
 dividend u/s 2(22)(e) in the hands of Sh. Naresh Kumar.? 
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 3. The appellant company did not file any appeal against the said 
 order nor Naresh Kumar, Director of the appellant company moved any 
 application before the Commissioner of Income Tax (Appeals) or take any 
 steps to challenge the order. 
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 4. The Assessing Officer filed an appeal before tribunal against the 
 said order of CIT (Appeals).  Tribunal has dismissed the appeal filed by 
 the Assessing Officer and has further observed as under: 
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 ?7. If it is supposed that all the conditions are fulfilled but then 
 also the same cannot be added as income in the hands of the payer company 
 as such amount can be added only to the income of a person as dividend 
 who is a shareholder to whom such loan and advances made.  Keeping in 
 view these facts and the aforementioned case law relied upon by ld. 
 CIT(A) and also the provisions of the Act, we are of the opinion that 
 addition in the hands of the assessee company has rightly been deleted by 
 ld. CIT(A) and to that extent we uphold his order and it is held that 
 addition has rightly been deleted in the hands of the assessee company. 
 However, to assess any amount as dividend in the hands of the recipient, 
 one has to see that whether or not all the aforementioned four conditions 
 as contained in provision of sec. 2(22)(e) are fulfilled or not and 
 unless the conditions specified in sec. 2(22)(e) are fulfilled, it cannot 
 be said that the said amount straightway is liable to be assessed in the 
 hands of the recipient.  Therefore, the directions of ld. CIT(A) that the 
 said amount should be added in the hands of Shri Naresh Kumar are 
 modified to the extent that same can be added in the hands of Shri Naresh 
 Kumar if the loan and advances is assessable as deemed dividend as per 
 provisions of law and said Shri Naresh Kumar should be granted with a 
 reasonable opportunity of hearing before adding the said amount to his 
 income as this will be the bare requirement of law to afford the 
 reasonable opportunity to other person, if any, action is taken against 
 him.  We, therefore, found no justification in the direction given by ld. 
 CIT(A) to the AO to straightway add the said amount in the hands of Shri 
 Naresh Kumar as it will be the requirement of law to give him a 
 reasonable opportunity of hearing and thereafter to decide the issue as 
 per provisions of law that whether or not the said amount can be added to 
 the income of Shri Naresh Kumar.  With these observations, we dismiss the 
 appeal filed by the revenue.? 
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 5. We do not understand how the appellant company can be aggrieved by 
 the said order.  The tribunal has already modified the order of the 
 CIT(A) and clarified the same. 
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 6. The appeal is dismissed in limine. 
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 SANJIV KHANNA,J 
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 R.V.EASWAR, J 
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 NOVEMBER 02, 2011 
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 vld 
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