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2016 (2) TMI 38 - AT - Income TaxDeemed dividend u/s.2(22)(e) - contention of assessee that it was business advance - Held that - e, the amount has been advanced as business advance, wherein the amount was advanced to a joint venture company for the purpose of purchasing machinery to carry on the business. The recipient company had purchased the machinery against the money so advanced and the assessee has also placed on record the trail of payments in this regard and in such facts and circumstances, where a business decision was taken between two concerns and the amount was advanced, such an advance cannot take the colour of loan simplicitor. Such a business transaction between two concerns, under which amount is transferred from one to another cannot be treated as dividend in the hands of shareholder by applying the deeming provisions of section 2(22)(e) of the Act. We find no merit in the order of CIT(A) in this regard and reversing the same, we direct the Assessing Officer to delete the addition - Decided in favour of assessee
Issues Involved:
1. Whether the amount of Rs. 51,00,000 advanced by M/s. Star Engineers (India) Pvt. Ltd. to M/s. Mercury Circuits Pvt. Ltd. should be treated as deemed dividend under section 2(22)(e) of the Income Tax Act, 1961. Detailed Analysis: Issue 1: Treatment of Rs. 51,00,000 as Deemed Dividend under Section 2(22)(e) Background: The assessee filed a return declaring an income of Rs. 47,64,527. During the scrutiny assessment, it was found that Star Engineers (India) Pvt. Ltd. (Star) had advanced Rs. 51,00,000 to its sister concern Mercury Circuits Pvt. Ltd. (Mercury). The assessee, a director in both companies, held more than 10% shareholding in Star and 50% in Mercury. Consequently, the Assessing Officer (AO) treated the advance as deemed dividend under section 2(22)(e) of the Act, which was taxable in the hands of the assessee. Assessee's Contention: The assessee argued that the amount was a business advance and not a loan. The advance was intended for the purchase of machinery and construction of a building to ensure the supply of Printed Circuits Boards (PCBs) to Star. The assessee provided evidence, including an agreement and balance sheet entries, to support that the advance was for business purposes and not for personal benefit. Assessing Officer's Findings: The AO rejected the assessee's contention, noting that Mercury had not started production by 31.03.2008 and the amount was used for purchasing capital assets. The AO concluded that the advance was a loan and treated it as deemed dividend under section 2(22)(e). CIT(A)'s Decision: The CIT(A) upheld the AO's decision, stating that Mercury was not capable of obtaining such an advance from the market and the advance was used to set up the factory, which was the responsibility of the shareholder. Hence, the advance was deemed dividend under section 2(22)(e). Tribunal's Analysis: The Tribunal examined whether the advance was a loan or a business transaction. It noted that Star's advance to Mercury was for purchasing machinery to start production of PCBs, which were crucial for Star's business. The Tribunal found that the advance was a business decision to ensure Mercury's production capabilities, and not a loan simplicitor. Legal Precedents: The Tribunal referred to several cases, including: - CIT Vs. Raj Kumar (Delhi High Court): Trade advances for commercial transactions do not fall under section 2(22)(e). - CIT Vs. Creative Dyeing & Printing (P) Ltd. (Delhi High Court): Business transactions that benefit both parties are not deemed dividends. - CIT Vs. Nagindas M. Kapadia (Bombay High Court): Advances towards purchases are not deemed dividends. Conclusion: The Tribunal concluded that the advance of Rs. 51,00,000 was a business transaction and not a loan. It directed the AO to delete the addition of Rs. 51,00,000 as deemed dividend under section 2(22)(e). Final Judgment: The appeal of the assessee was allowed, and the addition of Rs. 51,00,000 as deemed dividend was deleted. The Tribunal emphasized that business advances cannot be treated as loans for the purpose of section 2(22)(e). Order Pronouncement: The order was pronounced on January 27, 2016.
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