2020 (5) TMI 105 - AT - Income Tax

Deemed dividend addition u/s. 2(22)(e) - depreciation on temporary structure claimed - As per assessee he submitted that the details placed before the paper book were not examined by the lower authorities - HELD THAT- Assessee has not furnished the relevant material before the lower authorities for due examination. These issues require a fresh examination and hence set aside the orders of the lower authorities for a fresh examination. The assessee shall lay relevant materials in support of its contention before the AO and comply with the requirements of the AO in accordance with law. AO is free to conduct appropriate enquiry as deemed fit, but he shall furnish adequate opportunity to the assessee on the material etc to be used against it and decide the matter in accordance with law. Assessee s appeal is partly allowed for statistical purposes.

Summary

Issues:
1. Addition under section 2(22)(e) for transaction with a related party.
2. Disallowance of depreciation claimed on temporary structures.

Analysis:

Issue 1: Addition under section 2(22)(e)
The assessee appealed against the Commissioner of Income Tax (Appeals) order regarding the addition under section 2(22)(e) for a transaction with a related party. The Assessing Officer added a specific amount to the returned income after examining the assessee's transaction with another company where directors of both companies had a stake. The AO invoked section 2(22)(e) due to the stakeholding and added the amount to the income. The assessee contended that the section was misapplied as it pertains to loans given to shareholders, not by shareholders. The assessee argued that the conditions specified in circular no. 495 were not met as there were no common shareholders between the lender and the assessee. The department, however, claimed that relevant details were not provided earlier for examination. The tribunal decided to set aside the order for fresh examination, directing the assessee to present necessary materials and comply with the AO's requirements.

Issue 2: Disallowance of depreciation on temporary structures
The second issue involved the disallowance of depreciation claimed on temporary structures by the assessee. The Assessing Officer treated the expenditure as capital expenditure due to the enduring benefits derived from the assets purchased, disallowing a portion of the claimed depreciation. The assessee argued that the assets were for temporary structures installed in rented premises, which were later vacated. The department contended that insufficient details were provided for examination by the lower authorities. The tribunal noted that relevant materials were not adequately furnished earlier for examination. Consequently, the tribunal set aside the lower authorities' orders for a fresh examination, instructing the assessee to provide necessary details and comply with the AO's requirements for a proper decision.

In conclusion, the tribunal partially allowed the assessee's appeal for statistical purposes, emphasizing the need for a fresh examination of both issues with proper submission of relevant materials before the Assessing Officer.