2012 (3) TMI 62 - AT - Income Tax

Deemed Dividends - Advance from Company - Assessee managing director holding 10% Beneficial ownership - Accumulated Profit 32,43,511 - money advanced as capital added as notional income - Held That - For applicability of deemed dividends accumulated profits should exist on the date of loan, matter referred to AO to ascertain whether there was accumulated profits after reducing the notional income that was added under section 41 of the Act for the asst. year 2003-04.

Summary

Issues:
Whether the addition under section 2(22)(e) of the Act is justified based on the accumulated profits of the company.
Whether the CIT(A) correctly confirmed the addition of Rs.2,50,000/- under section 2(22)(e) of the Act.
Whether the CIT(A) erred in considering the accumulated profits of the company for the relevant assessment year.

Analysis:
The judgment revolves around the interpretation of section 2(22)(e) of the Act and the determination of accumulated profits for the purpose of justifying an addition under this provision. The primary issue is whether the CIT(A) was correct in confirming the addition of Rs.2,50,000/- under section 2(22)(e) of the Act. The case involved an individual assessee who received an advance from a company where he held a significant position and voting power. The Assessing Officer added the amount based on the company's accumulated profits, leading to a dispute over the interpretation of the relevant provisions.

The assessee contended that the accumulated profits of the company did not support the addition, as certain amounts were added as notional income in previous years and subsequently deleted by the first appellate authority. The CIT(A) rejected these contentions, emphasizing the deeming provision of section 2(22)(e) and the legal fiction it creates regarding deemed dividends. The CIT(A) held that even notional profits must be taxed if the conditions of the provision are met, and in this case, all conditions were fulfilled, justifying the addition.

Upon appeal, the Tribunal found errors in the CIT(A)'s reasoning, noting that the CIT(A) incorrectly stated that certain amounts had been confirmed under section 41(1) of the Act, which was not the case. The Tribunal directed that the deleted amount should not be considered in calculating the accumulated profits of the company. Furthermore, it highlighted the lack of examination by the Income Tax authorities regarding the accumulated profits at the time of advancing the loan, leading to the restoration of the matter to the Assessing Officer for proper verification and disposal.

In conclusion, the Tribunal allowed the appeal for statistical purposes, emphasizing the importance of accurately determining accumulated profits and complying with the conditions of section 2(22)(e) of the Act. The judgment underscores the need for a thorough examination of relevant factors and adherence to legal provisions in assessing additions under such provisions.