2013 (7) TMI 527 - HC - Income Tax

Deemed dividend, u/s. 2(22)(e) - Loan advanced to assessee - Assessee contends that huge amount of shares were settled in a trust - CIT A held that shares settled in favour of the Trust are still in the name of the trustees including the appellant and they are holding it as Trustees - Tribunal directed deletion - Held that - Total interest in the shares was divested and settled in a trust, the later requirement of Section 2 (22)(e) namely that of the assessee being a beneficial owner of the share, would not be satisfied - Revenue formed opinion that creation of Trust was not genuine because no documents in support were found at the time of search - Assessee agreed to pay tax on deemed dividend to avoid litigation - Entire issue is based on appreciation of materials on record - Decided against Revenue.

Summary

Issues Involved:
1. Deletion of addition made on account of deemed dividend under Section 2(22)(e) of the Income Tax Act, 1961.
2. Failure to disclose the existence of any trust during the search action and the subsequent agreement to pay taxes on the deemed dividend.

Detailed Analysis:

Issue 1: Deletion of Addition Made on Account of Deemed Dividend

Background:
The Revenue appealed against the Income Tax Appellate Tribunal's (ITAT) decision to delete an addition of Rs. 27,66,022/- made on account of deemed dividend under Section 2(22)(e) of the Income Tax Act, 1961. The Assessing Officer (AO) had taxed this amount as deemed dividend, asserting that the respondent-assessee held more than 10% of the voting power in M/s. Amod Stampings Pvt. Ltd., and loans were advanced to him.

Tribunal's Findings:
The Tribunal allowed the appeal by the assessee, stating that the shares were settled in a trust created on 16.01.2005, and the assessee did not hold any beneficial interest exceeding 10% of the voting power. The Tribunal emphasized that:
- The trust deed was executed on a valid stamp paper and notarized.
- The Board of Directors of M/s. Amod Stampings Pvt. Ltd. had acknowledged the settlement of shares in favor of the trust.
- The trust was created for the benefit of the family's children, and the shares were held by trustees, not the assessee.

High Court's Analysis:
The High Court upheld the Tribunal's decision, noting that:
- The Tribunal's findings were based on substantial evidence, including the notarized trust deed and Board meeting minutes.
- The Tribunal correctly applied the principle that a deeming provision should be applied strictly and restrictively.
- The Tribunal's conclusion that the trust was genuine and the shares were settled in the trust was not perverse and did not give rise to a question of law.

Issue 2: Failure to Disclose the Existence of Any Trust and Agreement to Pay Taxes

Background:
The Revenue argued that the assessee failed to disclose the existence of the trust during the search and had agreed to pay taxes on the deemed dividend in a statement recorded by the DDIT (Inv), Baroda.

Tribunal's Findings:
The Tribunal found that:
- The trust deed was created in 2005, well before the search conducted in 2009.
- The assessee had provided a letter dated 19.03.2009, explaining the creation of the trust and the settlement of shares.
- The Tribunal dismissed the Revenue's contention that the trust was not genuine due to the absence of a bank account or income, as the trust was not required to register or file returns without income.

High Court's Analysis:
The High Court agreed with the Tribunal, stating:
- The Tribunal considered all material facts, including the notarized trust deed and the Board's acknowledgment of the trust.
- The Tribunal's decision to reject the Revenue's argument about the non-genuineness of the trust was based on substantial evidence.
- The Tribunal rightly concluded that the deeming provision should not be applied to tax fictional income without concrete evidence.

Conclusion:
The High Court dismissed the Revenue's appeal, affirming the Tribunal's decision to delete the addition made on account of deemed dividend under Section 2(22)(e) of the Income Tax Act, 1961. The Court held that the Tribunal's findings were based on substantial evidence and were not perverse, thereby not giving rise to any question of law.