[ASN] IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.897 OF 2008 The Commissioner of Income Tax-6. ..Appellant. Vs. M/s. Ajit India (Gujarat) Pvt. Ltd. ..Respondent. Mr.J.S. Saluja for the Appellant. Mr. Nilesh Joshi with Mr. S. Hatin i/by Nandlal Kothari & Sabir for the Respondent. CORAM : F.I. REBELLO & R.S. MOHITE, JJ. DATE : 30th March, 2009. PC : 1. Revenue is in appeal on the following question. Whether on the facts and circumstances of the case and in law, the Hon’ble Tribunal was justified in holding that the amount of Rs.16,42,550/- held by the Assessing Officer as deemed dividend even though the amount has been accepted as loan from the holding company and the transaction has been held as deemed dividend by the Hon’ble ITAT in case of assessee for Annual Year 1997-98? 2. The matter pertains to interpretation of the provisions of Section 2(22)(e) of the Income Tax Act. 3. On consideration of requirement as to when the loan can be said to be a deemed dividend amongst others, it is required that the company which had given the loan has accumulated profit as on the relevant date. We are concerned with the relevant [ 2 ] date which is 31.3.1993. The CIT(A) in an appeal preferred by the assessee has clearly recorded a finding of fact that there was no accumulated profit available to the assessee as on 31.3.1994 and 1.4.1993 i.e. on the date on which the loan was shown in the books of the appellant company. This finding of fact was not disputed in the appeal preferred by the revenue. The same was not in issue before the tribunal. 4. The issue is whether book debt can be treated as deemed dividend for the purpose of Section 2(22)(e) of the Act. 5. Considering the finding of the fact recorded on accumulated profits, this issue need not be gone into. In our opinion, even if, we proceed on the basis that the book entry can be treated as dividend, nonetheless, in the instant case, there is no accumulated profit. The question of law as framed at the instance of revenue is therefore, purely academic. 6. In the light of that, there is no merit in the appeal which is accordingly, dismissed. ( R.S. MOHITE, J.) (F.I.REBELLO, J.)