2020 (8) TMI 467 - AT - Income Tax

Deemed dividend u/s.2(22)(e) - Assessee has placed reliance on the decision in the case of Commissioner of Income Tax Vs. P. K. Badiani 1970 (2) TMI 3 - BOMBAY HIGH COURT wherein held section 2(6A)(e) must be so interpreted that once an amount goes out of the accumulated profits as a loan and the loan is to be deemed to be dividend, the same amount when repaid cannot again be capable of attracting the fiction and be deemed to be dividend and avoid the happening of any such eventuality, the accumulated profits must be notionally reduced by the amount of all loans, etc., which are to be deemed to be dividends under the fiction under section 2(6A)(e) - HELD THAT - This issue needs factual verification vis-a-vis the applicability of law as pronounced by the Hon ble Jurisdictional High Court (supra.). Double taxation, in any case, is not warranted within the spirit and soul of the Income Tax Statute. Therefore, we set aside the order of the Ld. CIT(Appeals) and restore the matter back to the file of Assessing Officer directing him to consider the judgment of the Hon ble Jurisdictional High Court (supra.) and analyze the same with the facts of the assessee s case and adjudicate the issue in compliance with the principles of natural justice. Appeal of the assessee is allowed for statistical purposes.

Summary

Issues:
1. Addition of deemed dividend under section 2(22)(e) of the IT Act.
2. Treatment of amount already taxed as deemed dividend in earlier assessment years.
3. Comparison of taxable deemed dividend with available reserves.
4. Consideration of the decision of the Hon’ble Bombay High Court regarding double taxation.

Issue 1: Addition of Deemed Dividend:
The appeal pertains to the addition of deemed dividend under section 2(22)(e) of the IT Act. The assessee, a director in a company, was found to have received loans/advances from the company, treated as deemed dividend. The assessments for earlier years also included deemed dividend income. The AR argued against double taxation, citing a decision of the Bombay High Court. The Tribunal acknowledged the AR's submission and directed the matter to be reconsidered by the Assessing Officer in light of the High Court's decision to prevent double taxation.

Issue 2: Treatment of Previously Taxed Deemed Dividend:
The AR contended that the amount already taxed as deemed dividend in earlier assessment years should be reduced from the ledger balance. However, the CIT(A) and AO did not accept this argument. The Tribunal did not provide a direct ruling on this issue but focused on the potential for double taxation and the need for factual verification based on the High Court's decision.

Issue 3: Comparison with Available Reserves:
The AR proposed an alternative basis for comparison, suggesting that taxable deemed dividend should be compared with 50% of available reserves after adjustments for previous taxations and interim dividends. This argument was not directly addressed in the Tribunal's decision, which primarily focused on the potential for double taxation and the necessity to consider the High Court's judgment.

Issue 4: Consideration of High Court Decision on Double Taxation:
The key aspect of the appeal revolved around the High Court's decision on double taxation. The AR emphasized the potential for double taxation due to the additions made by the Revenue Authorities. The Tribunal agreed with the AR's stance, emphasizing that double taxation is not aligned with the Income Tax Statute's principles. Consequently, the Tribunal set aside the CIT(A)'s order and instructed the Assessing Officer to reevaluate the matter in light of the High Court's decision to ensure compliance with natural justice principles.

In conclusion, the Tribunal allowed the appeal for statistical purposes, highlighting the importance of preventing double taxation and ensuring fair adjudication based on legal precedents.