2013 (4) TMI 779 - AT - Income Tax

Whether the advances given to the assessee has to be considered as a deemed dividend u/s 2(22)(e) - Held that - advances to the assessee is for the import of specialized machinery from out of India and for meeting other incidental requirements required for doing job work - it was mutually agreed that assessee shall do the job work of M/s Nexo Industries exclusively and at lower rates than the market rate and the amount of job work will be adjusted against the advances - the advances were out of Business compulsion and business expediency/ necessity and not for the personal use/benefit of the assessee and therefore these do not fall under the purview of section 2(22) (e) - Hon ble Calcutta High Court rendered in the case of Pradeep Kumar Malhotra V CIT reported 338 ITR 538 - The job work is being done by the assessee exclusively for M/s Nexo Industries (P) Ltd. ( sistercompany) of which the assessee is a Director - the assessee even charged 10% less than the market rate for job work which resulted into a mutual benefit of both the parties - The assessee was not allowed to adjust advances against the job work done by it as per the terms of the agreement. As a result the sister-concern took over the entire business of the assessee - there is no personal benefit to the assessee from this arrangement but the assessee has suffered therefrom - Hence the security deposit cannot be construed as a loan - Reliance is placed on the decision of Delhi High Court in (2000) 161 CTR (Del) 432 (2000) 244 ITR 358 - Decided in favor of assessee

Issues Involved:
1. Deemed Dividend under Section 2(22)(e) of the Income-tax Act, 1961.
2. Legality of directions issued under Section 144A of the Income-tax Act, 1961.
3. Capitalization of interest and loan processing charges.
4. Suppression of labor income.
5. Discrepancy in sales figures.
6. Discrepancy in purchase account.
7. Investment in mutual funds.
8. Discrepancy in allowances and salary payments.

Issue-wise Detailed Analysis:

1. Deemed Dividend under Section 2(22)(e):
The core issue was whether advances received by the assessee from its sister concern, M/s Nexo Industries Pvt. Ltd., should be treated as deemed dividend under Section 2(22)(e) of the Income-tax Act, 1961. The assessee argued that the advances were for business purposes, specifically for purchasing machinery to enhance job work capacity, and not for personal benefit. The Assessing Officer (AO) treated the entire advance as deemed dividend, while the Commissioner of Income Tax (Appeals) [CIT(A)] partially upheld this view. The Tribunal concluded that these advances were indeed business transactions arising out of commercial expediency and not for personal use, thus not falling under Section 2(22)(e). Consequently, the addition of Rs. 6,79,62,621/- was deleted.

2. Legality of Directions Issued under Section 144A:
The assessee contended that the directions issued by the Additional Commissioner of Income Tax (ACIT) under Section 144A were illegal as they were issued without granting a hearing to the assessee. The CIT(A) and the Tribunal found that the ACIT is authorized to issue such directions and that these were lines of investigation rather than prejudicial directions. The Tribunal upheld the legality of the directions, noting that the ACIT also means JCIT under Section 2(28C) of the Act.

3. Capitalization of Interest and Loan Processing Charges:
The AO had capitalized interest and loan processing charges related to secured loans used for creating fixed assets. The CIT(A) deleted the addition of Rs. 25,91,099/- under Explanation 8 to Section 43(1) and Rs. 4,12,850/- on account of loan processing charges. The Tribunal upheld the CIT(A)'s decision, agreeing that these expenses should not be capitalized as they were not directly related to the creation of fixed assets.

4. Suppression of Labor Income:
The AO identified a discrepancy between the labor income reported in the trading account and the amount reflected in TDS certificates. The Tribunal did not find substantial evidence to support the AO's claim of suppression of labor income and thus did not uphold the addition.

5. Discrepancy in Sales Figures:
The AO noted a discrepancy between the total sales reported in the profit and loss account and the party-wise sales details. The Tribunal found that this discrepancy was not adequately substantiated by the AO and thus did not uphold the addition.

6. Discrepancy in Purchase Account:
The AO found a discrepancy in the purchase figures from M/s Mukand Ltd. The Tribunal did not find sufficient grounds to support the AO's addition based on this discrepancy.

7. Investment in Mutual Funds:
The AO questioned the source of investment in SBI mutual funds, noting a discrepancy between the amount reported by the assessee and the amount reflected in AIR information. The Tribunal did not find sufficient evidence to support the AO's addition on this ground.

8. Discrepancy in Allowances and Salary Payments:
The AO noted that the amount paid as allowances (HRA and transport) was significantly higher than the salary paid. The Tribunal found that the AO did not provide sufficient evidence to justify an addition based on this discrepancy.

Conclusion:
The Tribunal allowed the appeal of the assessee partly, deleting the entire addition made under Section 2(22)(e) for deemed dividend and upholding the CIT(A)'s deletion of additions related to capitalization of interest and loan processing charges. The Tribunal dismissed the revenue's appeal, finding no merit in the AO's claims regarding discrepancies in labor income, sales figures, purchase account, investment in mutual funds, and allowances versus salary payments.

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