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2016 (10) TMI 2 - AT - Income TaxDeemed dividend addition by applying the provisions of section 2(22)(e) - held that - Since the Assessee in the present case is not a shareholder in the lender company, in the light of the intention behind the provisions of Sec.2(22)(e) and in the absence of indication in Sec.2(22)(e) to extend the legal fiction to a case of loan or advance to a non-shareholder also, we are of the view that loan or advance to a non-shareholder cannot be taxed as Deemed Dividend in the hands of a non-shareholder. - Decided in favour of assessee.
Issues Involved:
1. Whether the loan received by the assessee from M/s Pataka Industries (P) Ltd. should be treated as deemed dividend under section 2(22)(e) of the Income Tax Act, 1961. Issue-wise Detailed Analysis: 1. Loan as Deemed Dividend under Section 2(22)(e): Facts and AO's View: The assessee received a loan of ?3,62,46,645 from M/s Pataka Industries (P) Ltd. The Assessing Officer (AO) treated this loan as deemed dividend under section 2(22)(e) of the Income Tax Act, 1961, despite the assessee not being a shareholder in M/s Pataka Industries (P) Ltd. The AO's rationale was based on the fact that a common shareholder, Shri Abdul Kalam, held significant shares in both the assessee company and M/s Pataka Industries (P) Ltd. CIT(A)'s Decision: On appeal, the CIT(A) deleted the addition made by the AO, referencing the Tribunal's decision in the assessee’s own case for the assessment year 2006-07, where a similar issue was decided in favor of the assessee. The CIT(A) noted that the assessee was not a shareholder in M/s Pataka Industries (P) Ltd., and thus, the provisions of section 2(22)(e) were not applicable. The CIT(A) relied on the jurisdictional ITAT's order and the Hon'ble Rajasthan High Court's decision in the case of CIT vs Hotel Hilltop, which held that deemed dividend under section 2(22)(e) could not be assessed in the hands of a non-shareholder. Tribunal's Analysis: The Tribunal upheld the CIT(A)'s decision, emphasizing the legal interpretation of section 2(22)(e). The Tribunal reiterated that deemed dividend can only be assessed in the hands of a shareholder of the lender company, not in the hands of a non-shareholder. The Tribunal referenced the Special Bench decision in Bhaumik Color Labs and the Hon'ble Rajasthan High Court's judgment in Hotel Hilltop, which clarified that the liability of tax as deemed dividend could only be attracted in the hands of the shareholder, not the concern (non-shareholder). Legal Provisions and Interpretation: Section 2(22)(e) of the Income Tax Act defines deemed dividend to include any payment by a company to a shareholder holding not less than ten percent of the voting power, or to any concern in which such shareholder has a substantial interest. The Tribunal noted that the second limb of section 2(22)(e) pertains to payments to a concern in which the shareholder has a substantial interest. However, the Tribunal clarified that for such payments to be deemed dividends, the recipient must be a shareholder of the lending company. Supporting Case Laws: The Tribunal cited several decisions, including the Bombay High Court's ruling in CIT Vs. Universal Medicare Pvt. Ltd. and the Delhi High Court's decision in CIT Vs. Ankitech Pvt. Ltd., which supported the view that deemed dividend under section 2(22)(e) could only be taxed in the hands of the shareholder. Conclusion: The Tribunal concluded that since the assessee was not a shareholder in M/s Pataka Industries (P) Ltd., the loan received could not be treated as deemed dividend under section 2(22)(e). The order of the CIT(A) was upheld, and the appeal by the Revenue was dismissed. Final Judgment: The appeal by the Revenue was dismissed, and the order pronounced in the Court on 10.08.2016 confirmed that the loan amount of ?3,62,46,645 received by the assessee was not assessable as deemed dividend under section 2(22)(e) of the Income Tax Act, 1961.
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