2017 (12) TMI 598 - AT - Income Tax

Deemed dividend addition u/s 2(22)(e) - taxability of loans/advances received by the assessee - Held that - We find that the legal fiction in section 2(22)(e) enlarges the definition of dividend but does not extend to or broaden the concept of a shareholder . As the assessee is not a shareholder of the lender-company, the receipt is not susceptible to tax under s.2(22)(e) in its hands . See Baumik Colour Pvt.Ltd. 2008 (11) TMI 273 - ITAT BOMBAY-E - Decided in favour of assessee.

Summary

Issues Involved:
Taxability of deemed dividend under section 2(22)(e) of the Income Tax Act in the hands of the assessee.

Analysis:
The appeal by the Revenue challenged the deletion of an addition towards deemed dividend under section 2(22)(e) by the Commissioner of Income Tax (Appeals) in the assessment order relevant to Assessment Year 2004-05. The Revenue contended that the loan given by Cadila Pharmaceuticals Ltd. to the assessee company fell within the definition of deemed dividend and should be treated as such in the hands of the assessee. The Senior Counsel for the assessee argued that a similar issue had been decided in favor of the assessee in a previous case for AY 2006-07 where it was held that loans/advances received did not fall under section 2(22)(e). The Tribunal noted that the taxability of loans/advances under section 2(22)(e) was the main issue. It was established that the provision applied only to shareholders of the lending company, not mere recipients of loans/advances. The Tribunal referred to legal precedents and emphasized that the deeming provision should be strictly interpreted, and unless all conditions were met, the receipt could not be deemed as dividend.

The Tribunal highlighted that the assessee company was not a shareholder of the lending company, thus the receipt was not taxable under section 2(22)(e) based on various judicial precedents. It was clarified that the legal fiction in section 2(22)(e) expanded the definition of dividend but did not broaden the concept of a shareholder. The Tribunal upheld the order of the CIT(A) based on the legal principles and precedents, concluding that the appeal of the Revenue was to be dismissed. The decision was in line with previous judgments and there was no infirmity in the order of the CIT(A). Consequently, the appeal of the Revenue was dismissed, and the order was pronounced in open court on a specified date.