IN THE HIGH COURT OF DELHI AT NEW DELHI 
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   ITA 44/2012  
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 CIT            ..... Appellant 
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 Through: Mr. Sanjeev Rajpal, Adv. 
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 versus 
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 JOGINDER SINGH    ..... 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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      16.01.2012 
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 This appeal by the Revenue, which pertains to the assessment year 
 2006-07 impugns order of the Tribunal dated 31st March, 2011 on the 
 ground that M/s. Gururakha Plastic Pvt. Ltd. (company) had given loan of 
 Rs.93,15,703/- to the respondent-assessee Joginder Singh and therefore 
 provisions of deemed dividend under Section 2(22)(e) of the Income Tax 
 Act, 1961 (Act) are attracted. 
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 2. Tribunal has recorded the finding that the aforesaid payment was on 
 account of a business transaction under the agreement dated 1st April, 
 2005 in respect of two plots of land situated at Shri Satguru Ram Das 
 Marg, Mansarover Garden, New Delhi-110015.  Under this agreement, the 
 respondent-assessee had approached the company to develop and construct 
 industrial buildings, offices, godowns on the said plots as per building 
 plans sanctioned by the Delhi Development Authority.  As per the terms of 
 the collaboration agreement an advance of Rs. 4 crores was to be paid to 
 the respondent-assessee.  Accordingly, the Tribunal has held that the 
 provisions of Section 2(22)(e) relating to deemed dividend are not 
 applicable, as the payment received was not a loan or an advance covered 
 by the aforesaid Section. 
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 3. Learned counsel for the Revenue has submitted that the findings 
 recorded by the Tribunal are perverse as the aforesaid stand was taken in 
 the letter dated 10th December, 2008 and not in the first letter dated 
 28th November, 2008 filed before the Assessing Officer.  Secondly, in the 
 accounts of the company, the amount was shown as a loan. 
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 4. We have considered the aforesaid contentions but do not find that 
 the order of the Tribunal can be treated or categorized as perverse.  The 
 Tribunal has referred to the relevant facts including the agreement, the 
 resolution etc. passed by the board of directors of the company and the 
 factum that an application was made to the local authority for sanction 
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 of building plans.  The Assessing Officer has not given any finding and it was not the case of the Revenue that the aforesaid agreement was not 
 implemented and complied with.  The agreement provides for division of 
 the constructed property in the ratio of 35% and 65% between the 
 respondent-assessee and the company as the builder.  Treatment in the 
 books, as rightly observed is not determinative and all aspects have to 
 be examined to determine the income earned as per the Act. 
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 5. In view of the aforesaid position, we cannot accept the contention 
 of the Revenue that the impugned order passed by the Tribunal is 
 perverse.    The appeal has no merit and it is accordingly dismissed. 
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 SANJIV KHANNA, J 
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 R.V.EASWAR, J 
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 JANUARY 16, 2012 
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 mm 
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 $ 19 
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