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Interpretation of section 104 of the Income-tax Act, 1961 regarding the applicability of deemed dividend under section 2(22)(e) to the assessment year 1975-76. Analysis: The case involved a reference under the Income-tax Act, 1961 regarding the applicability of section 104 to a situation where a sum was paid to the managing director of the assessee-company, raising the question of whether it should be treated as a dividend under section 2(22)(e) of the Act. The company, a trading company not substantially interested by the public, had not distributed any dividends to its shareholders for the relevant assessment year, leading to the initiation of proceedings under section 104 by the Income-tax Officer. The Tribunal upheld the additional income-tax levy under section 104, prompting the reference to the High Court for opinion. The assessee contended that statutory provisions of the Companies Act, particularly section 205(2A), restricted them from paying dividends without necessary transfers to the general reserve, and difficulties in closing accounts and holding general body meetings prevented dividend declarations. However, the authorities and Tribunal held that the Finance Act, 1973 amendment removed the legal bar, making the provisions of section 104 applicable despite Companies Act restrictions. The loan given to the managing director was argued not to be deemed dividend under section 2(22)(e) by the Income-tax Officer, leading to the dispute. The key issue revolved around the interpretation of section 2(22)(e) of the Act, deeming a loan to a shareholder as a dividend. The High Court analyzed conflicting judgments, notably the Calcutta High Court's view in Moore Avenue Properties case and the Gujarat High Court's stance in Bombay Mineral Supply Co. case. The Court delved into the definition of "dividend" under section 2(22)(e) and the scheme of section 104, emphasizing the exclusionary clause for payments set off against subsequently declared dividends. The Court disagreed with the Gujarat High Court's interpretation, holding that deemed dividends under section 2(22)(e) would not be dividends for section 104 purposes if subsequently set off by actual dividends. The distinction between "distributed" and "actually distributed" dividends was crucial, with the legislative intent clear in the language of the Act. The Court rejected the argument that sections 2(22)(e) and 104 operated in different fields, emphasizing that deemed dividends could lose their character as dividends upon subsequent set off. The Court considered various decisions but found them irrelevant to the specific issue at hand. Ultimately, the Court ruled in favor of the assessee, answering the reference question in the negative, indicating that the loan given to the managing director did not qualify as a deemed dividend for the purposes of section 104. The judgment provided a detailed analysis of the statutory provisions and judicial interpretations to resolve the dispute comprehensively.
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