2019 (10) TMI 448 - HC - Income Tax

Reopening of assessment u/s 147 - deemed dividend addition u/s 2(22)(e) - HELD THAT - In the previous year relevant to the AY- 2013- 14, M/s. D. P. Vora received a loan of ₹ 5.68 Crores from M/s. Touchstone. Therefore, the reasons in support states that, this loan is in the nature of deemed dividend, covered by Section 2(22)(e) of the Act. This issue was admittedly not considered earlier, as no scrutiny Assessment was done under Section 143(3) of the Act but only an Intimation under Section 143(1) of the Act was sent to the Petitioner.. Petitioner had in its objection pointed out that for the same Assessment Year i.e. Assessment Year 2013-14, the Revenue has sought to tax the some loan received from M/s. D.P. Vora from M/s. Touchstone under Section 2(22)(e) - Tribunal by an order dated 24th April, 2017 held that the amount received by M/s. D.P. Vora from M/s. Touchstone was in the nature of business transaction so as to meet its trading activities. Thus, not hit by Section 2(22)(e) of the Act. The reasons in support of the impugned notice seeks to tax the same transaction as deemed dividend. Prima facie, once it is held on fact that, the advance was on trading account, then no occasion to apply under Section 2(22)(e) of the Act, can arise, as held by the Delhi High Court in CIT v/s. Creative Dyeing and Printing P. Ltd. 2009 (9) TMI 43 - DELHI HIGH COURT .

Summary

Issues:
1. Jurisdiction of reopening notice under Section 148 of the Income Tax Act, 1961.
2. Application of Section 2(22)(e) of the Act in the case.
3. Consideration of business transaction versus deemed dividend.
4. Previous Tribunal's decision on the same transaction.
5. Ad-interim stay to the impugned notice.

Jurisdiction of Reopening Notice:
The petitioner challenged a Notice dated 17th May, 2019, issued under Section 148 of the Income Tax Act, 1961, seeking to reopen the assessment for Assessment Year 2013-14. The petitioner argued that the reopening notice lacked jurisdiction as the transaction forming the basis for the notice had already been considered by the Tribunal in the context of Section 2(22)(e) of the Act in a previous case involving a company. The Tribunal had ruled that the transaction was for business purposes and not in the nature of an advance or loan, thereby rendering the reopening notice without merit.

Application of Section 2(22)(e) of the Act:
The impugned notice sought to tax a loan received by M/s. D.P. Vora from M/s. Touchstone under Section 2(22)(e) of the Act, treating it as deemed dividend for the Assessment Year 2013-14. The petitioner argued that the transaction was a business transaction to meet trading activities, as previously determined by the Tribunal. The petitioner highlighted that if the advance was on a trading account, Section 2(22)(e) of the Act would not be applicable, citing a precedent set by the Delhi High Court in CIT v/s. Creative Dyeing and Printing P. Ltd., 318 ITR 476.

Consideration of Business Transaction vs. Deemed Dividend:
The petitioner pointed out that the Revenue had previously sought to tax the same loan transaction under Section 2(22)(e) of the Act for the same Assessment Year. The Tribunal's earlier decision held that the transaction was a business transaction for trading activities and not subject to Section 2(22)(e) of the Act. Despite this, the impugned notice sought to tax the same transaction as deemed dividend, raising concerns about the inconsistent treatment of the transaction.

Previous Tribunal's Decision:
The Tribunal had previously ruled that the amount received by M/s. D.P. Vora from M/s. Touchstone was in the nature of a business transaction to meet trading activities, thereby not falling under the purview of Section 2(22)(e) of the Act. This decision was crucial in the petitioner's argument against the reopening notice and the application of deemed dividend taxation to the transaction.

Ad-Interim Stay to the Impugned Notice:
In light of the arguments presented and the previous Tribunal decision, an ad-interim stay was granted to the impugned notice dated 17th May, 2019, until the final disposal of the petition. This stay was deemed necessary to prevent any immediate adverse actions resulting from the reopening notice while the matter was being further deliberated and resolved.

This detailed analysis of the judgment showcases the key legal issues involved, the arguments presented by the parties, and the significance of the previous Tribunal decision in shaping the outcome of the case.