2015 (6) TMI 239 - AT - Income Tax

TDS u/s 194 - Deemed dividend u/s 2(22)(e) - loan/advance given to a non-shareholder entity - liability to deduct tds - Held that - As per scheme of statutory provisions of the Act, the payment or advances to non shareholders does not require TDS u/s 194 of the Act and the appellant company cannot be held to be a defaulter u/s 201 of the Act so as to attract interest u/s 201(1A) of the Act. It is also pertinent to note that under provisions of Companies Act, every company is expected to maintain a Register of shareholders u/s 150 of the Companies Act 1956 and the company is not obliged to maintain any other register wherein details of such concern may be maintained to which provisions of section 2(22)(e) of the Act apply. Under the factual matrix of the present case, we observe that when the loans/advances have been given to a non shareholder, then it is impossible for a payer company to ascertain whether it will attract the provisions of section 2(22)(e) of the Act or not. - provisions of section 2(22)(e) and 194 of the Act do not require the payer assessee company to deduct TDS u/s 194 of the Act. - Decided in favour of assesse.

Summary

Issues:
1. Whether payments made to certain entities can be treated as deemed dividend under section 2(22)(e) of the IT Act.
2. Whether the assessee company was liable to deduct TDS under section 194 of the IT Act for the payments made.

Analysis:

Issue 1:
The appeal was filed by the revenue against the order of the CIT(A) regarding the treatment of payments made to M/s Aims Max Gardenia Developers and M/s G.S. Developers as deemed dividend under section 2(22)(e) of the IT Act. The AO contended that since the assessee company had shareholding in these entities, the provisions of deemed dividend should apply. However, the CIT(A) ruled in favor of the assessee, stating that the payments did not qualify as deemed dividend as the entities were not shareholders of the assessee company. The CIT(A) relied on legal precedents and explanations provided by the assessee to support this decision. The Tribunal upheld the CIT(A)'s decision, emphasizing that the loans/advances were given to non-shareholder entities, and therefore, the provisions of deemed dividend under section 2(22)(e) did not apply. The Tribunal concluded that the AO's decision to charge TDS under section 201(1)/201(1A) was not justified, and the appeal of the revenue was dismissed.

Issue 2:
Regarding the second issue of whether the assessee company was liable to deduct TDS under section 194 of the IT Act for the payments made, the Tribunal noted that the three alleged companies did not hold any shares in the assessee company. The Tribunal observed that under the statutory provisions of the Act, payments or advances to non-shareholders do not require TDS deduction under section 194. The Tribunal further explained that the Companies Act mandates the maintenance of a register of shareholders, and in this case, the loans/advances were given to non-shareholder entities, making it impossible for the payer company to determine the applicability of section 2(22)(e) of the Act. Therefore, the Tribunal held that the assessee was not obligated to deduct TDS under section 194 as the loans/advances were not given to shareholders. The Tribunal concluded that the AO's decision to charge TDS under section 201(1)/201(1A) was not sustainable, and the CIT(A) was correct in allowing the appeal of the assessee on this issue.

In summary, the Tribunal dismissed the revenue's appeal, upholding the CIT(A)'s decision that the payments made to certain entities did not qualify as deemed dividend under section 2(22)(e) of the IT Act. The Tribunal also ruled that the assessee was not liable to deduct TDS under section 194 for the payments made to non-shareholder entities.