2011 (4) TMI 954 - HC - Income Tax

Deemed dividend - assessee entitled to both salary and commission of profits - assessing authority found that he has drawn advances both of salary and commission on profits and taxed them as deemed dividend under section 2(22)(e) of the Income-tax Act Held that - advance towards salary, which was due to the petitioner and was credited to his account every month could not be treated as deemed dividend, but that the advance of commission on profits over and above that amount drawn during the course of the year before the profits was determined and accrued to the petitioner, would be treated as deemed dividend subject to tax.

Issues:
1. Interpretation of section 2(22)(e) of the Income-tax Act, 1961 regarding deemed dividend.
2. Taxation of advances drawn by the assessee against commission on profits.
3. Determination of deemed dividend after adjusting the salary.
4. Double taxation concerns raised by the appellant.
5. Application of legal precedents regarding trade advances and deemed dividend.

Issue 1: Interpretation of Section 2(22)(e) of the Income-tax Act:
The case involved a dispute regarding the interpretation of section 2(22)(e) of the Income-tax Act, 1961, concerning deemed dividend. The Tribunal found that the right to receive commission on profits arises only when the accounts are settled at the end of the accounting year. The accrual of commission on profits could only be made on the date of account settlement, not before. Legal precedents such as E. D. Sassoon and Co. Ltd. v. CIT and CIT v. Ashokbhai Chimanbhai were cited to support this interpretation.

Issue 2: Taxation of Advances Against Commission on Profits:
The assessing authority had taxed advances drawn by the assessee against commission on profits as deemed dividend under section 2(22)(e). The Tribunal ruled that the advances were not simple advances but were against commission on profits, which accrue only at the end of the accounting year. The Tribunal directed the reassessment of deemed dividend after adjusting the salary due to the assessee.

Issue 3: Determination of Deemed Dividend After Adjusting Salary:
The Tribunal directed the assessing authority to redetermine the deemed dividend in the hands of the assessee after taking into account the salary that was fixed and deposited in the assessee's account. The advances against commission on profits were to be treated as deemed dividend subject to tax.

Issue 4: Double Taxation Concerns:
The appellant argued that any amount due to him and on which tax had been paid should not be deemed as dividend under section 2(22)(e) to avoid double taxation. However, the Court found no merit in this argument as the tax paid on income did not preclude the taxation of deemed dividend on advances against commission on profits.

Issue 5: Application of Legal Precedents on Trade Advances and Deemed Dividend:
The appellant relied on legal precedents from the Delhi High Court to argue that advances for business transactions should not be treated as deemed dividend under section 2(22)(e). However, the Court distinguished those cases, emphasizing that in the present case, the advances drawn by the assessee were against commission on profits and were not due until the accounts were settled.

In conclusion, the Court dismissed both appeals, upholding the Tribunal's findings that the advances against commission on profits were to be treated as deemed dividend subject to tax, and there was no error in the assessment.

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