2019 (4) TMI 199 - AT - Income Tax

Reopening of assessment u/s 148 - addition on account of deemed dividend u/s 2(22)(e) - Already taxed in hand of recipient concern - assessee was major shareholder of the concern - Reason to belief - HELD THAT - Eventuality of application of section 2(22)(e) whether in the hands of Zetex or the assessee simultaneously cannot be taken up i.e. where the addition has already been made in the hands of Zetex by the AO concerned and the said addition was challenged before various Forums simultaneously, re-assessment proceedings cannot be initiated in the hands of assessee being the major shareholder. DHFL Venture Capital Fund Vs. ITO 2013 (6) TMI 575 - BOMBAY HIGH COURT had held that jurisdictional requirement for reopening of assessment under section 148 of the Act was the formation of reason to believe by the Assessing Officer that income had escaped assessment and existence of that reason must be in present No merit in initiation of re-assessment proceedings by recording reasons for reopening assessment in the hands of assessee as on 04.09.2013 i.e. the date on which the addition was already made in the hands of recipient of loan, though the assessee was major shareholder of the concern giving loan and concern taking the loan. Hence, the re-assessment order passed under section 143(3) r.w.s. 147 of the Act is annulled. The additional ground of appeal raised by assessee is thus, allowed.

Issues Involved:
1. Validity of reassessment under section 147 based on the decision in the case of Zetex Engineers Pvt. Ltd.
2. Addition of ?1,41,34,381/- as deemed dividend under section 2(22)(e).
3. Taxability of funds given by Hextech to Zetex as deemed dividend.
4. Restriction of deemed dividend to peak amount and incremental increase in accumulated profits.
5. Proportional taxation of deemed dividend based on shareholding.
6. Interest charged under sections 234A, 234B, and 234C.
7. Additional ground on the validity of notice under section 148 for reopening assessment.

Issue-wise Detailed Analysis:

1. Validity of reassessment under section 147:
The assessee challenged the reassessment under section 147, arguing that the reopening was based on the CIT(A)'s decision in the case of Zetex Engineers Pvt. Ltd., which the department had not accepted. The Tribunal admitted the additional ground of appeal, as it pertained to the jurisdiction invoked by the Assessing Officer, which is a legal issue.

2. Addition of ?1,41,34,381/- as deemed dividend:
The CIT(A) confirmed the addition of ?1,41,34,381/- as deemed dividend in the hands of the appellant, based on the fact that Hextech Engineering Pvt. Ltd. had given a loan to Zetex Engineers Pvt. Ltd., and the appellant was a common shareholder with more than 90% shareholding in both companies.

3. Taxability of funds given by Hextech to Zetex as deemed dividend:
The assessee contended that the funds given by Hextech to Zetex were for business purposes and not as a loan, thus, they should not be taxed as deemed dividend under section 2(22)(e). However, the CIT(A) upheld the addition, considering it a deemed dividend.

4. Restriction of deemed dividend to peak amount and incremental increase in accumulated profits:
The assessee argued that the addition should be restricted to the peak amount of loans given during the financial year 2009-10 and should account for incremental increases in accumulated profits after deducting deemed dividends for earlier years. This argument was not addressed as the jurisdictional issue was decided in favor of the assessee.

5. Proportional taxation of deemed dividend based on shareholding:
The assessee submitted that any deemed dividend should be taxed in proportion to his shareholding in Hextech's accumulated profits, not the entire accumulated profits. This argument was also not addressed due to the decision on the jurisdictional issue.

6. Interest charged under sections 234A, 234B, and 234C:
The CIT(A) confirmed the interest charged under sections 234A, 234B, and 234C. This issue was not addressed separately due to the decision on the jurisdictional issue.

7. Additional ground on the validity of notice under section 148:
The assessee argued that the notice for reopening under section 148 was invalid, as the addition on account of deemed dividend had already been made in the case of Zetex Engineers Pvt. Ltd. The Tribunal agreed, stating that on the date of issuing the notice, the addition was already made in Zetex's hands, and the Revenue was pursuing appeals. Therefore, there was no reason to believe that income had escaped assessment in the assessee's hands.

The Tribunal held that the Assessing Officer exceeded his jurisdiction by recording reasons for reopening the assessment based on the same transaction already taxed in Zetex's hands. The reassessment proceedings were deemed invalid and bad in law. Consequently, the reassessment order under section 143(3) r.w.s. 147 was annulled, and the appeal of the assessee was allowed. The Tribunal did not address other grounds of appeal due to the decision on the jurisdictional issue.

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