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"11. On perusal of the submissions filed by the assessee vide letter dated 09.10.2014 it is seen that assessee company (Dhariya Construction Pvt. Ltd.) had received loan/advances of Rs.2,93,26,224/- from M/s. Dhariya Infrastructure Development Pvt. Ltd. (PAN AABCA5337L) during the year whereupon an interest amount of A.Y.2012-13 Rs.3,26,224 was paid to the lender company. Further, it was noticed from the return of income for A.Y.2012-13 of the lender company that the assessee company (DCPL) was beneficial owner of 50% shares in the lender company which is such a company in which public was not substantially interested. As the assessee company had substantial shareholding/interest in the borrower company, loans of Rs.2,93,26,224/- received from M/s.Dhariya Infrastructure Development Pvt. Ltd. having reserves and surplus (General reserve and inappropriate Profits) of Rs.6,11,43,211/-, required to be treated as deemed income under section 2(22)(e) of the Act. Accordingly, the assessee was vide letter dated 13.1.2015, directed to show cause but why the figure of Rs.2,93,26,224/- by invoking the provisions of clause (e) of sub section 2(22) of the Income Tax Act, 1961 be not added to the total income for AY 2012-13."

Since facts of the case being identical, following the above decision of the Hon. Mumbai Tribunal, it is held that the Assessing Officer was not right in invoking the provisions of section 2(22)(e) of the Income Tax Act, 1961 in respect of deemed dividend. Accordingly, he is directed to delete the same. Thus, Grounds Nos. 1 and 2 are allowed."

2.3. The Ld. DR further submitted before us that firstly, the Ld. CIT (Appeals) has not given basis for coming to the conclusion, the amount received from M/s. Dhariya Infrastructure Development Pvt. Ltd. by the assessee company i.e. Dhariya Construction Pvt. Ltd. were in the nature of A.Y.2012-13 "Inter Corporate Deposit" and was not loan/advances. It was also submitted that the assessee company was having common Managing Director of the M/s. Dhariya Infrastructure Development Pvt. Ltd. namely Shri Mukund Dhariya and there was no formal agreement between the assessee and M/s. Dhariya Infrastructure Development Pvt. Ltd. to treat the amount as "Inter Corporate Deposit". Further, Ld. DR submitted that the assessee was not able to establish that M/s. Dhariya Infrastructure Development Pvt. Ltd. was having sufficient/ surplus finds of its own which can be given to the assessee for the purpose of keeping it as deposit and were not borrowed funds.

3. The Ld. AR of the assessee has submitted that the amount given was in the nature of „Inter Corporate Deposit" and was not loan/advances. For that purpose, the Ld. AR of the assessee has drawn our attention to the decisions relied on by the Ld. CIT(Appeals) while giving relief to the assessee.

4. We have heard the rival contentions and perused the material available on record. In the present case, the assessee company namely, M/s.Dhariya Construction Pvt. Ltd. had received loan/advances amounting to Rs.2,93,26,224/- from M/s. Dhariya Infrastructure Development Pvt. Ltd. for which during the assessment year under consideration, interest of Rs.3,26,224/- was paid to lender company. Further, it was mentioned that the assessee company was beneficial owner of 50% shares in the lender company in which the public was not substantially interested. Thus, requirements for invoking provisions of section 2(22)(e) of the Act were fulfilled as (i) the amount was received by the assessee company; (ii) the assessee company was beneficial owner of 50% shares in the lender company A.Y.2012-13 i.e. M/s. Dhariya Infrastructure Development Pvt. Ltd. and therefore, it is required to be taxed in the hands of the assessee company being deemed dividend.

4.6 The assessee had filed ledger account of M/s. Dhariya Infrastructure Development Pvt. Ltd. (Inter Corporate Deposit) for the period 1st April, 2011 to 31st March, 2012 wherein various amounts were given by the A.Y.2012-13 said M/s. Dhariya Infrastructure Development Pvt. Ltd to the assessee company between 5th April, 2011 to 31st March, 2012 and it appears from Page 21 of the Paper book annexed on record that interest paid on the deposit was amounting to Rs.2,69,260/-. However, looking into the various entries which were done by the M/s. Dhariya Infrastructure Development Pvt. Ltd, it appears that every now and then amount was transferred from M/s. Dhariya Infrastructure Development Pvt. Ltd to the account of M/s. Dhariya Construction Pvt. Ltd. like the amount of Rs.50 Lakhs was transferred to M/s. Dhariya Construction Pvt. Ltd. on 23.04.2011, Rs.10 Lakhs on 27.04.2011, another amount of Rs. 10 Lakhs on 02.05.2011, another amount of Rs.10 Lakhs 05.05.2011 and Rs.50 Lakhs on 09.05.2011 and also Rs.20 Lakhs deposited to the M/s. Dhariya Infrastructure Development Pvt. Ltd. on 09.05.2011. The entries of those various amounts received by the assessee and given back by the assessee clearly show that it was Running Account . 4.7 If we examine the issue from another angle, to find out whether the amount given by the assessee was in fact in the nature of loan/advances and was "Inter Corporate Deposit". It is essential for the amount given as "Inter Corporate Deposits", there should be voluntariness emanating from the lender to give the amount to the assessee and not from assessee. In this case, there being common Managing Director, amount was being transferred as and when there was requirement of fund by the assessee from the account of M/s. Dhariya Infrastructure Development Pvt. Ltd. and thereafter returned A.Y.2012-13 back by the assessee to the lender. Hence the element of voluntariness is missing in the conduct of parties.