2012 (10) TMI 539 - AT - Income Tax

Additions on Deemed dividend - beneficial shareholder or registered shareholder - Held that - A.O brought to tax profit of Rs.2,50,000/- received by the assessee HUF in terms of provisions of section 2(22)(e) without recording his specific findings as to whether the conditions stipulated in the said section were fulfilled. The CIT(A) while accepting that the AO did not record any findings regarding the nature of transaction, concluded that the amount was in the nature of loan or advance. Since the company M/s D.N. Kansal Securities (P) Ltd. in which the assessee had 12 % shareholding, reflected accumulated profit less than profit of Rs. 2,50,000/- CIT(A) while observing that the assessee has declared undisclosed income, uphold the findings of A.O in bringing to tax the amount of Rs.2,50,000/-. neither even analyzing the issues in the light of provisions of sec.2(22)(e) or nor attempted to ascertain as to whether HUF is the beneficial shareholder or registered shareholder. Section 250(6) mandates that the order of the CIT(A) while disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for the decision, thus in view of the foregoing, especially when the CIT(A) have not passed a speaking order, consider it fair and appropriate to set aside the order of the ld. CIT(A) and restore the matter to his file for deciding the aforesaid issues, afresh - in favour of assessee for statistical purposes.

Issues:
1. Validity of the order of the Commissioner of Income Tax (Appeals).
2. Addition in the hands of the assessee as a Hindu Undivided Family (HUF) without being a registered shareholder.
3. Application of section 2(22)(e) regarding the amount received as a loan.
4. Legality of the assessment under section 153C without satisfaction and material against the assessee.

Issue 1 - Validity of the order of the Commissioner of Income Tax (Appeals):
The appeal challenged the order of the Commissioner of Income Tax (Appeals) as being against the facts and circumstances of the case. The Commissioner upheld the addition in the hands of the assessee, ruling that there was material belonging to the assessee during the search, justifying the addition. The Commissioner also held that the amount received was in the nature of a loan or advance, upholding the Assessing Officer's decision. However, the Commissioner's order lacked a detailed analysis of the issues in the light of the relevant provisions, violating the rules of natural justice. The Tribunal found the order to be cryptic and lacking in reasoning, emphasizing the importance of passing a reasoned order. The Tribunal set aside the Commissioner's order and remanded the matter for fresh consideration with a requirement to pass a speaking order.

Issue 2 - Addition in the hands of the assessee as a Hindu Undivided Family (HUF) without being a registered shareholder:
The Assessing Officer brought to tax the profit received by the assessee HUF under section 2(22)(e) without specific findings on whether the conditions of the section were met. The Commissioner upheld this decision, considering the assessee as the beneficial owner of shares despite not being a registered shareholder. The Tribunal noted that the Commissioner's order did not analyze the nature of the transaction or the shareholding pattern adequately. The Tribunal emphasized the need for a detailed examination of the provisions of section 2(22)(e) and the factual matrix before making such additions.

Issue 3 - Application of section 2(22)(e) regarding the amount received as a loan:
The dispute revolved around the application of section 2(22)(e) on the amount received by the assessee. The Assessing Officer considered the amount as a transfer of income and brought it to tax. The Commissioner upheld this decision, stating that the amount was in the nature of a loan or advance. The Tribunal found that the Commissioner's order lacked a proper analysis of the provisions of section 2(22)(e) and the relevant judicial pronouncements. The Tribunal emphasized the need for a reasoned order and directed a fresh consideration of the issues.

Issue 4 - Legality of the assessment under section 153C without satisfaction and material against the assessee:
The appeal also raised the issue of the legality of the assessment under section 153C without recording satisfaction or finding material against the assessee in the search. The Tribunal did not delve into this issue separately as no specific submissions were made before them. Consequently, this issue did not require separate adjudication and was dismissed.

In conclusion, the Tribunal partly allowed the appeal, remanding the matter for fresh consideration with detailed analysis and a speaking order. The Tribunal stressed the importance of following the rules of natural justice and providing reasoned decisions in tax matters.

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