2019 (11) TMI 96 - AT - Income Tax

Reopening of assessment u/s 147 - Deemed dividend u/s 2(22)(e) - AO treated the amount received from the company as deemed dividend - HELD THAT - There is no illegality in the formation of belief by the Assessing Officer, in as much as, at the stage of issuing the notice u/s 148 of the Act, all that is required is that the AO should have some tangible material evidence to reopen the assessment. The information based on which the notice u/s 148 of the Act was issued is an information received from another Income tax officer and the same cannot be faulted with. It is true that during the course of assessment itself the assessee has explained the nature of transactions. It is also true that in the balance sheet of the company M/s J.C. Infotech Technologies Ltd, it has been clearly mentioned that the amount of ₹ 1,80,42,924/- was given to the assessee which was in the ordinary course of business. When same evidence were furnished before the ld. CIT(A), after examining them, the ld. CIT(A) was convinced that the transaction was in the ordinary course of business and provisions of section 2(22(e) of the Act do not apply. - Decided in favour of assessee.

Issues:
1. Addition of deemed dividend u/s 2(22)(e) of the Income tax Act, 1961
2. Validity of reopening assessment under section 147/148 of the Act
3. Nature of transaction: deemed dividend or business transaction

Analysis:

Issue 1: Addition of deemed dividend u/s 2(22)(e) of the Income tax Act, 1961
The case involved an appeal by the Revenue against the deletion of an addition of ?1,80,42,924 on account of deemed dividend u/s 2(22)(e) of the Income tax Act, 1961. The Assessing Officer treated the amount received from a company as deemed dividend due to the shareholding pattern and reserves and surplus of the company. However, the assessee contended that the amount was a security deposit against property let out to the company and not a dividend. The ld. CIT(A) accepted the assessee's argument, considering it a business transaction and not falling under the purview of section 2(22)(e) of the Act. The Tribunal upheld the ld. CIT(A)'s decision, emphasizing that the transaction was a business affair and not a deemed dividend.

Issue 2: Validity of reopening assessment under section 147/148 of the Act
The Revenue challenged the validity of reopening the assessment under section 147/148 of the Act. The Assessing Officer based the reopening on information received from another Income tax officer regarding loans and advances given by a company to its director, who was a major shareholder. The Tribunal held that the formation of belief by the Assessing Officer for reopening was legal, as tangible material evidence was present at the stage of issuing the notice u/s 148 of the Act. Citing a decision of the Hon'ble High Court, the Tribunal upheld the reopening of assessment.

Issue 3: Nature of transaction: deemed dividend or business transaction
The core debate revolved around whether the amount received by the assessee constituted a deemed dividend or a business transaction. The Assessing Officer treated it as deemed dividend under section 2(22)(e) of the Act due to the shareholding pattern and reserves of the company. However, the ld. CIT(A) and the Tribunal concluded that the transaction was a security deposit for property rental, falling outside the scope of deemed dividend. The Tribunal emphasized that the transaction was a business affair between the parties, supported by judicial precedents and the balance sheet of the company.

In conclusion, the Tribunal dismissed the Revenue's appeal, upholding the deletion of the addition as deemed dividend and affirming the nature of the transaction as a business affair rather than a dividend distribution. The decision highlighted the importance of examining facts and evidence to determine the true nature of transactions, especially in cases involving deemed dividends under tax laws.

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