2010 (10) TMI 605 - AT - Income Tax

Addition - Exemption in clause (ii) of sub section 2(22)(e) - Deemed dividend - Since, the assessee contended that money lending and granting of loans was a substantial part of the business of M/s MGS India Pvt. Ltd, due to which, exemption u/s 2(22)(e)(ii) of the Act would be available to the assessee company - Held that - as per the case of CIT vs. Ambassador Travel Pvt. Ltd. , 2008 -TMI - 75003 - DELHI HIGH COURT , wherein, it was observed that where the assessee was involved in the booking of resorts for the customers of the companies and entered into normal business transactions as a part of day-to-day business activities, the financial transactions could not be treated as loans or advances received by the assessee from the two concerns - Decided in favour of assessee.

Summary

Issues:
1. Interpretation of section 2(22)(e)(ii) of the Income Tax Act regarding deemed dividend.
2. Whether exemption under section 2(22)(e)(ii) applied to the appellant company.

Analysis:
1. The primary issue in this case revolved around the interpretation of section 2(22)(e)(ii) of the Income Tax Act concerning deemed dividend. The assessee contended that a substantial part of the business conducted by M/s MGS India Pvt. Ltd. was money lending, and therefore, the loan advanced to the appellant company should not be taxable as deemed dividend. The Assessing Officer (AO) argued that the provisions of section 2(22)(e) were applicable as M/s MGS India Pvt. Ltd. was involved in various businesses, including share trading and sale of spares. The AO estimated the accumulated profits and treated a specific amount as deemed dividend in the hands of the assessee.

2. The Appellate Tribunal, following previous decisions, held that the AO was not justified in making the addition under section 2(22)(e). However, the Tribunal noted that the CIT(A) failed to address the crucial assertion made by the assessee regarding money lending being a substantial part of M/s MGS India Pvt. Ltd.'s business, which could exempt the appellant company from deemed dividend taxation. As this legal issue could significantly impact the case, the Tribunal remitted the matter back to the CIT(A) to decide on this specific objection raised by the assessee. The Tribunal clarified that the deletion of the addition on merits would not be revisited.

In conclusion, the Tribunal allowed the appeal of the assessee for statistical purposes, emphasizing the importance of addressing the legal issue related to the substantial part of the business being money lending by M/s MGS India Pvt. Ltd. for determining the applicability of the exemption under section 2(22)(e)(ii) of the Income Tax Act.