2013 (12) TMI 596 - AT - Income Tax

Advance taken from other company - Deemed dividend - Held that - The factual submissions made by the assessing officer reveal that the transactions are of commercial in nature - Following CIT v. Raj Kumar 2009 (5) TMI 17 - DELHI HIGH COURT - Section 2(22)(e) did not bring within its ambit advances received against the future supply of goods - The word 'advance' which appears in the company of the word 'loan' could only mean such advance which carries with it an obligation of repayment - Trade advance which are in the nature of money transacted to give effect to a commercial transactions would not, fall within the ambit of the provisions of section 2(22)(e) of the Act - Decided against Revenue.

Summary

Issues:
1. Addition made under section 2(22)(e) of the Act by the assessing officer.
2. Deletion of the addition by the CIT (A) and the cross objection filed by the assessee.
3. Dispute regarding deemed dividend u/s 2(22)(e) of the Act.

Analysis:
1. The Revenue's appeal challenged the CIT (A)'s deletion of the addition made under section 2(22)(e) of the Act. The assessing officer added Rs.10.47 lakhs as deemed dividend based on shareholding details and transactions with a sister concern. The CIT (A) deleted the addition after considering the nature of transactions and commercial evidence presented by the assessee. The AO's reliance on a Bombay High Court decision was found unjustifiable by the CIT (A).

2. The Revenue contended that the CIT (A) erred in not recognizing the excessive funds held by the assessee and the non-commercial nature of transactions. The Revenue argued that section 2(22)(e) covers advances not only loans, and the CIT (A) failed to consider this aspect. The assessee, on the other hand, supported the CIT (A)'s decision, stating no infirmity warranted interference.

3. The ITAT analyzed the facts, case records, and relevant case laws. The AO treated the transactions as loans/advances under section 2(22)(e), but the CIT (A) found them to be commercial in nature. Referring to a Delhi High Court judgment, the ITAT concluded that trade advances for commercial transactions do not fall under section 2(22)(e). The AO's remand report also acknowledged the commercial nature of the transactions, supporting the CIT (A)'s decision to delete the addition.

4. The ITAT dismissed the Revenue's appeal and the assessee's cross objection as the issue of addition under section 2(22)(e) was resolved in favor of the assessee. The ITAT upheld the CIT (A)'s decision to delete the addition, citing the commercial nature of the transactions and the Delhi High Court judgment.

In conclusion, the ITAT upheld the CIT (A)'s decision to delete the addition made under section 2(22)(e) of the Act, emphasizing the commercial nature of the transactions and the inapplicability of deemed dividend provisions.