2005 (5) TMI 43 - HC - Income Tax

Undisclosed income - deemed dividend - block assessment proceedings initiated under Chapter XIV-B - dispute relates to a few entries for the previous year 1999-2000 in relation to the assessee s investment in 9 per cent. RBI Relief Bonds - The Assessing Officer had treated these investments as deemed dividend in the hands of the assessee within the meaning of section 2(22)(e) Held that Tribunal misdirected itself in law and adopted a wholly erroneous approach in reversing the appellate order passed by the Commissioner of Income-tax (Appeals), in relation to the alleged deemed dividend of Rs. 5,99,00,000 assessed as the appellant-assessee s alleged undisclosed income with reference to the provisions of section 2(22)(e) Further, Tribunal misdirected itself in law in not upholding the order of CIT (Appeals) and remanding the issue of interest u/s 158BFA(1) to the AO

Issues Involved:
1. Applicability of section 2(22)(e) of the Income-tax Act, 1961 regarding deemed dividend.
2. Whether the transactions were undisclosed income for block assessment.
3. The role of accumulated profits in determining deemed dividend.
4. The legitimacy of transactions between companies and partnership firms.
5. The principle of lifting the corporate veil.
6. The validity of findings by the Commissioner of Income-tax (Appeals) and the Tribunal.
7. The remand of the issue of interest under section 158BFA(1) to the Assessing Officer.

Detailed Analysis:

1. Applicability of Section 2(22)(e) of the Income-tax Act:
The definition of "deemed dividend" under section 2(22)(e) applies to three categories: (a) loans or advances to a shareholder with at least 10% voting power, (b) payments to a concern where such a shareholder has substantial interest, and (c) payments made for the benefit of such a shareholder. The court found that the payments made by the companies to the partnership firms did not fall within these categories as they were repayments of advances received by the companies from the firms.

2. Transactions as Undisclosed Income for Block Assessment:
The court emphasized that block assessment under Chapter XIV-B pertains to undisclosed income. Since all transactions were reflected in the regular books of account and disclosed during regular assessments, they could not be considered undisclosed income. The Tribunal's conclusion that these transactions were undisclosed income was deemed incorrect.

3. Role of Accumulated Profits:
The court noted that for a payment to be considered deemed dividend, it must be made out of the accumulated profits of the company. However, since the payments in question were repayments of advances, the issue of accumulated profits became irrelevant.

4. Legitimacy of Transactions:
The court found that the transactions between the companies and the partnership firms were legitimate and conducted in the regular course of business. The firms were owed money by the companies, and the payments were not loans or advances but repayments of those debts.

5. Principle of Lifting the Corporate Veil:
The court discussed the principle of lifting the corporate veil, which allows the court to look beyond the corporate structure to the actual substance of the transactions. However, it concluded that there was no evidence to suggest that the transactions were a device to avoid tax or that they were not genuine.

6. Findings by the Commissioner of Income-tax (Appeals) and the Tribunal:
The Commissioner of Income-tax (Appeals) had found that the transactions were disclosed and reflected in the regular books of account, and there was no incriminating material to suggest otherwise. The Tribunal's decision to reverse this finding was based on suspicion and conjecture rather than solid evidence. The court reinstated the findings of the Commissioner of Income-tax (Appeals).

7. Remand of Interest Issue under Section 158BFA(1):
The court noted that the issue of interest under section 158BFA(1) was a legal issue that should have been decided by the Tribunal itself rather than remanding it to the Assessing Officer.

Conclusion:
The court answered all seven questions in favor of the assessee, except the first part of question No. 6, which was answered in the negative. The appeal was allowed, the order of the Tribunal was set aside, and the order of the Commissioner of Income-tax (Appeals) was affirmed. The court also ordered the release of the bonds within a fortnight unless they were subject to any other attachment.

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