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2011 (5) TMI 218 - HC - Income TaxAddition - Deemed dividend u/s 2(22)(e) - Loan - no evidence could be produced regarding the allotment of shares - In this regard also, the observations of the Tribunal are not only unwarranted but devoid of any basis - It seems to have taken as correct what was stated by the assessee before it. We have seen the order of the AO which is well reasoned and a speaking one - these were questions of facts which were recorded by the authorities below, but since great perversity and infirmity was pointed out by the learned counsel for the Revenue in the findings and observations recorded by the Tribunal - Decided against the assessee
Issues Involved:
1. Deletion of additions as deemed dividend under Section 2(22)(e) of the Income Tax Act. 2. Classification of loans/advances as business receipts in the ordinary course of business. Issue-wise Detailed Analysis: 1. Deletion of Additions as Deemed Dividend: The primary issue in this case was whether the Income Tax Appellate Tribunal (ITAT) was correct in deleting the additions of Rs. 10,20,000/-, Rs. 15,40,000/-, and Rs. 20,70,000/- made by the Assessing Officer (AO) as deemed dividend under Section 2(22)(e) of the Income Tax Act. The AO had treated loans and advances received by the assessee from various companies where he held more than 10% shares as deemed dividends, amounting to Rs. 1,40,04,030/-. The CIT(A) deleted some of these additions based on the financial years in which the transactions occurred, and the Revenue did not challenge these deletions before the Tribunal. The Tribunal observed that the AO did not analytically examine the nature of the receipts and treated all receipts as deemed dividends. The Tribunal found that the assessee demonstrated that the advances were business receipts in the ordinary course of business, specifically for investment in real estate. The Tribunal upheld the deletion of Rs. 10,20,000/-, Rs. 15,40,000/-, and Rs. 20,70,000/- as deemed dividends, considering them as business advances. 2. Classification of Loans/Advances as Business Receipts: The Tribunal noted that the assessee was in the business of real estate brokerage and received advances from companies for investment in real estate. The Tribunal found that these advances were not loans but business receipts in the ordinary course of business, thus not falling within the ambit of deemed dividend under Section 2(22)(e). However, the High Court found the Tribunal's observations to be perverse and against the facts recorded by the AO and CIT(A). The High Court noted that the AO and CIT(A) had categorically recorded certain transactions as sham and colorable devices to avoid the mischief of Section 2(22)(e). For instance, the High Court highlighted that agreements executed in 2003 for the sale of property still reflected the property in the assessee's balance sheet as of 2005, indicating the transactions were not genuine. The High Court also noted that the AO required the assessee to produce certificates from the Registrar of Companies to support the contention that shares had been allotted to the investing companies, which the assessee failed to do. Consequently, the AO treated these amounts as deemed dividends. Conclusion: The High Court found significant perversity and infirmity in the Tribunal's findings and observations. It concluded that the Tribunal had been swayed by the statements of the assessee without proper examination of the evidence. The High Court answered both substantial questions of law in favor of the Revenue and against the assessee, setting aside the Tribunal's order and allowing the Revenue's appeal.
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