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2011 (5) TMI 582 - AT - Income TaxDeemed dividend - TDS u/s 194 - learned CIT(A) has taken a view that the payment made by the assessee to M/s ALM Infotech City (P) Ltd. and Shri Alimuddin is not covered by the provisions contained in Section 2(22)(e) of the Act - learned counsel for the assessee submitted that an agreement was executed between assessee and proprietary concern of Shri Alimuddin to acquire loan suitable for the forthcoming project of the assessee company and the said amount was not utilized by Shri Alimuddin for his personal purposes - in the remand report no adverse comments have been given by the AO in respect of the agreements and memorandum of undertaking executed by the parties on which reliance was placed by the assessee - Held that payment made to International Land Developers Ltd. does not come under the ambit of Section 2(22)(e) of the Act inasmuch as International Land Developers Ltd. is not a shareholder of the assessee company Regarding payment is of Rs.1, 00, 25, 000 - Under this agreement the assessee had agreed to advance upto Rs.5 crores to Goldman Malls Pvt. Ltd. to enable it to acquire the title and ownership rights of the land for the projects and to incur other costs and expenses in relation thereto - Decided in favor of the assessee
Issues Involved:
1. Whether the payments made by the assessee to various entities and individuals can be treated as deemed dividend under Section 2(22)(e) of the Income-tax Act, 1961. 2. Whether the assessee is liable for non-deduction of tax at source (TDS) under Section 194 of the Income-tax Act, 1961. 3. Whether the payments made for business exigencies/purposes can be excluded from the ambit of deemed dividend. Issue-wise Detailed Analysis: 1. Deemed Dividend under Section 2(22)(e): The primary issue revolves around whether the payments made by the assessee to M/s ALM Infotech City (P) Ltd., International Land Developers Ltd., Shri Alimuddin, and Goldman Malls Pvt. Ltd. can be classified as deemed dividends under Section 2(22)(e) of the Income-tax Act, 1961. The Revenue contended that these payments should be treated as deemed dividends since the recipients were either shareholders or entities in which shareholders had substantial interests. Analysis: - M/s ALM Infotech City (P) Ltd.: The Tribunal observed that M/s ALM Infotech City (P) Ltd. is not a registered shareholder of the assessee company. The Tribunal relied on the Special Bench decision in ACIT vs. Bhowmick Color Pvt. Ltd., which held that for Section 2(22)(e) to apply, the recipient must be both a registered and beneficial shareholder. Since M/s ALM Infotech City (P) Ltd. did not meet these conditions, the payment could not be treated as deemed dividend. - International Land Developers Ltd.: Similarly, the Tribunal noted that International Land Developers Ltd. is not a shareholder of the assessee company, and hence, the provisions of Section 2(22)(e) do not apply. - Shri Alimuddin: The Tribunal upheld the CIT(A)'s finding that the payment to Shri Alimuddin was made for business purposes and not as a loan or advance. Therefore, it could not be treated as deemed dividend. - Goldman Malls Pvt. Ltd.: The Tribunal found that the payment to Goldman Malls Pvt. Ltd. was made for business exigencies and that the entity was not a shareholder of the assessee company. Hence, the payment could not be classified as deemed dividend. 2. Non-Deduction of TDS under Section 194: The Revenue argued that the assessee should have deducted TDS on the payments made, as these were in the nature of dividends under Section 2(22)(e). The CIT(A) and the Tribunal, however, found that since the payments were not deemed dividends, there was no liability for TDS under Section 194. Analysis: - The Tribunal supported the CIT(A)'s view that the provisions of Section 194 do not apply as the payments were not deemed dividends. The Tribunal also noted that the assessments of the recipients did not include these payments as deemed dividends. 3. Business Exigencies/Purposes: The assessee contended that the payments were made for business purposes, supported by various agreements and MoUs. The CIT(A) and the Tribunal accepted this contention, noting that the payments were made under commercial agreements and were not loans or advances. Analysis: - The Tribunal cited several judicial precedents, including CIT vs. Sunil Sethi and CIT vs. Creative Dyeing and Printing (P) Ltd., which held that payments made in the regular course of business are not deemed dividends. The Tribunal found that the payments to Shri Alimuddin and Goldman Malls Pvt. Ltd. were made for business purposes, as evidenced by the agreements and MoUs. Conclusion: The Tribunal upheld the CIT(A)'s order, concluding that the payments made by the assessee were not deemed dividends under Section 2(22)(e) and, therefore, no TDS was required under Section 194. The Tribunal dismissed the Revenue's appeals and treated the assessee's cross-objections as infructuous. The decision was pronounced in the open court on 6.5.2011.
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