2005 (7) TMI 91 - HC - Income Tax

Deemed dividend income u/s 2(22)(e) - interest payment - disallowance u/s 40(b) - assessee is the Hindu undivided family - HELD THAT - Clause (e) of section 2(22) of the Act as it existed clearly provides that if the loan is received by the shareholder it is only then the said loan can be deemed to be dividend in his hands. In the present case admittedly the assessee-firm was not the shareholder of the company M/s. Jai Prakash Associates (P.) Ltd. and the partners of the firm were the shareholders in the books of the company therefore the loan advanced by the company to the firm cannot be deemed to be dividend inasmuch as loan was not to the shareholder but to the partnership firm which was not the shareholder in the books of the company. It is settled principle of law that the deeming provision has to be construed strictly. In the present case the Tribunal has decided the issue on the merits and the question involved is not of jurisdiction to invoke the provision of section 263 of the Act on the facts and circumstances of the case but the question is whether the Tribunal has rightly treated the loan given by the company to the assessee as deemed dividend income within the purview of section 2(22)(e) of the Act. Thus we are of the opinion that the principle laid down by the apex court in the cases of CIT v. C.P. Sarathy Mudaliar 1971 (10) TMI 8 - SUPREME COURT and Rameshwarlal Sanwarmal v. CIT 1979 (12) TMI 1 - SUPREME COURT applies to the present case and the order of the Tribunal is in conformity with the decisions of the apex court. We accordingly uphold the same. So far as question No. 4 is concerned the Tribunal has recorded a categorical finding on a consideration of the clause of the partnership deed that Smt. Rekha Dixit became the partner in a partnership firm with effect from November 1 1985 and therefore the finding of the Tribunal is a finding of fact. There is no reason to interfere with such finding. In view of the aforesaid finding the interest paid to Smt. Rekha Dixit prior to November 1 1985 the provision of section 40(b) cannot be invoked. The order of the Tribunal is accordingly upheld. In view of our opinion on questions Nos. 2 and 3 question No. 1 has become academic and the same is returned unanswered. In the result questions Nos. 2 3 and 4 referred to us are answered in the affirmative i.e. in favour of the assessee and against the Revenue and question No. 1 is returned unanswered.

Summary

Issues Involved:
1. Justification of Tribunal in cancelling the order passed by the Commissioner of Income-tax under section 263 of the Income-tax Act, 1961.
2. Treatment of interest-free advances received by the assessee-firm as deemed dividend under section 2(22)(e) of the Income-tax Act, 1961.
3. Determination of whether the assessee-firm or its partners were the beneficial owners of shares in M/s. Jai Prakash Associates (P.) Ltd.
4. Disallowance of interest paid to Smt. Rekha Dixit under section 40(b) of the Income-tax Act, 1961.

Detailed Analysis:

Issue 1: Justification of Tribunal in Cancelling the Order under Section 263
The Tribunal cancelled the order passed by the Commissioner of Income-tax under section 263, which had set aside the assessment order for being erroneous and prejudicial to the interests of the Revenue. The Tribunal found that the Assessing Officer had conducted a full scrutiny of the case, and there was no conclusive finding that the Assessing Officer had not applied his mind to certain aspects of the case. The Tribunal held that the Commissioner's directions were not justified as the assessment order was not erroneous.

Issue 2: Treatment of Interest-Free Advances as Deemed Dividend
The Commissioner of Income-tax had directed the Assessing Officer to treat the interest-free advances received by the assessee-firm from M/s. Jai Prakash Associates (P.) Ltd. as deemed dividend under section 2(22)(e). The Tribunal, however, held that the assessee-firm was not a shareholder in the company as the shares were held in the names of the partners. Citing Supreme Court decisions, the Tribunal concluded that only loans advanced to registered shareholders could be deemed as dividends. Since the firm was not a registered shareholder, the advances could not be treated as deemed dividends.

Issue 3: Beneficial Ownership of Shares
The Tribunal addressed whether the assessee-firm was the beneficial owner of the shares held in M/s. Jai Prakash Associates (P.) Ltd. The Tribunal referenced Supreme Court rulings, which clarified that the term "shareholder" refers to the registered shareholder, not the beneficial owner. Since the shares were registered in the names of the partners and not the firm, the firm could not be considered the shareholder. Therefore, the firm was not liable for deemed dividend on the advances received.

Issue 4: Disallowance of Interest Paid to Smt. Rekha Dixit
The Tribunal examined the disallowance of interest paid to Smt. Rekha Dixit under section 40(b). The Commissioner had directed the disallowance of interest for the entire year, arguing that she was entitled to share profits for the entire accounting year. The Tribunal found that Smt. Rekha Dixit became a partner only from November 1, 1985, based on the partnership deed. Therefore, any interest paid to her before November 1, 1985, was not disallowable under section 40(b). The Tribunal upheld the Assessing Officer's decision to allow interest payable to her up to October 31, 1985.

Conclusion:
The High Court upheld the Tribunal's findings on all issues:
- The Tribunal was justified in cancelling the order under section 263.
- The interest-free advances could not be treated as deemed dividend since the firm was not a registered shareholder.
- The firm was not the beneficial owner of the shares; the partners were the registered shareholders.
- The interest paid to Smt. Rekha Dixit before she became a partner was not disallowable under section 40(b).

Questions Nos. 2, 3, and 4 were answered in the affirmative, in favor of the assessee and against the Revenue. Question No. 1 was returned unanswered as it became academic.