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2013 (8) TMI 438 - AT - Income TaxDeemed dividend u/s 2(22)(e) - Computation of shareholding - Whether for applying the provisions of section 2(22)(e) of the Act the cumulative holding of the assessee-firm and its partners is to be considered or the shareholding of the firm in isolation is to be considered - Held that - assessee-firm holds only 1.07 percent shares of the sister-concern whereas the partners of the assessee-firm holds 6.64 percent and 6 percent shareholding respectively. The Assessing Officer had observed that the cumulative holding of both partners of the assesseefirm being more than 10 per cent. results in application of the provisions of section 2(22)(e) of the Act. Undoubtedly the assessee-firm on its own is holding only 1.07 percent of shareholding in the concern - assessee-firm in the present case is holding less than 10 percent of shareholding any amount advanced by closely held company to the assessee-firm is not to be treated as deemed dividend under the provisions of section 2(22)(e) of the Act irrespective of the fact that the shareholding of the firm to whom advance had been made and the partners of the said firm have shareholding more than 10 percent of the said concern which had advanced the amount - Following decision of CIT v. Hotel Hilltop 2008 (3) TMI 310 - RAJASTHAN HIGH COURT and Asst. CIT v. Bhaumik Colour P. Ltd. 2008 (11) TMI 273 - ITAT BOMBAY-E - Decided against Revenue.
Issues Involved:
1. Deletion of addition treating current liability as deemed dividend under section 2(22)(e) of the Income-tax Act. 2. Deletion of addition by disallowing 20 percent of bonus and wages. Detailed Analysis: Issue 1: Deletion of Addition Treating Current Liability as Deemed Dividend under Section 2(22)(e) The Revenue's appeal contested the deletion of an addition of Rs. 2,30,86,070 by the Commissioner of Income-tax (Appeals) (CIT(A)), who had treated the current liability in the name of M/s. Octave Apparels P. Ltd. as deemed dividend under section 2(22)(e) of the Income-tax Act. The assessee-firm comprised three partners, including M/s. Octave Apparels P. Ltd., which held a 20% share. The firm had shown a balance of Rs. 2,98,07,898 under "current liabilities" against M/s. Octave Apparels P. Ltd. The Assessing Officer (AO) noted a cheque of Rs. 2.50 crores received from the said concern on March 28, 2006, and treated Rs. 2,30,86,070 as deemed dividend under section 2(22)(e), considering the partners' collective shareholding exceeded 10%. The CIT(A) observed that for section 2(22)(e) to apply, the shareholder should hold not less than 10% voting power. The firm held only 1.07% shares in M/s. Octave Apparels P. Ltd., and the payment was not for the individual benefit of any shareholder. Thus, the CIT(A) deleted the addition, stating the firm was an independent income-tax assessee. The Tribunal upheld the CIT(A)'s view, referencing the Rajasthan High Court's decision in CIT v. Hotel Hilltop and the Special Bench of the Mumbai Tribunal in Asst. CIT v. Bhaumik Colour P. Ltd., which held that deemed dividend under section 2(22)(e) could only be assessed in the hands of a shareholder, not a non-shareholder. Therefore, the cumulative holding of the firm and its partners was irrelevant, and the addition was rightly deleted. Issue 2: Deletion of Addition by Disallowing 20 Percent of Bonus and WagesThe Revenue also appealed against the deletion of an addition of Rs. 4,49,967 by disallowing 20% of bonus and wages. The AO had disallowed the amount due to variations in workers' signatures and different languages used in signatures, without pointing out specific defects in vouchers. The CIT(A) found no merit in the 20% disallowance as the AO allowed 80% of the expenditure without specific defects. The Tribunal agreed with the CIT(A), stating that in the absence of specific defects, the ad hoc disallowance was unjustified, and upheld the deletion. Conclusion:The Tribunal dismissed the Revenue's appeal, upholding the CIT(A)'s deletion of both the addition treating current liability as deemed dividend under section 2(22)(e) and the disallowance of 20% of bonus and wages. The order pronounced in the open court on the 27th day of January, 2012.
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