2013 (11) TMI 1369 - HC - Income Tax

Loan from the company - deemed dividend - Held that - The borrower is not a shareholder of a Company known as M/s. Goa Golf Club Pvt. Ltd. (which is lender in this case) and as such the question of including the disputed amount as deemed dividend in terms of Section 2(22)(e) of the Income Tax Act, does not arise - Decided against Revenue.

Summary

Issues:
Challenge to Order of Income Tax Appellate Tribunal under Section 260-A of Income Tax Act, 1961 regarding treatment of amount as deemed dividend under Section 2(22)(e) in the case of non-shareholder assessee.

Analysis:
1. Facts of the Case: The Respondent declared total income under Section 143(1) of the Income Tax Act, 1961. During a search, it was found that M/s. Goa Golf Club Pvt. Ltd. advanced a loan to M/s. Brito Amusement Pvt. Ltd., where Dr. William Britto and Mrs. Muriel Britto had substantial interests. The Assessing Officer treated the amount as deemed dividend under Section 2(22)(e) due to accumulated profits of M/s. Goa Golf Club Pvt. Ltd.

2. Appellant's Argument: The Appellant argued that as Dr. Britto had substantial interest in M/s. Goa Golf Club Pvt. Ltd., the advance should be deemed dividend. The Appellant challenged the Tribunal's conclusion that advances cannot be considered as deemed dividends under Section 2(22)(e) of the Income Tax Act.

3. Respondent's Argument: The Respondent contended that the assessee was not a shareholder of M/s. Goa Golf Club Pvt. Ltd., and advances could only be deemed dividends in the hands of shareholders. They argued that the Appellant had no grounds for appeal as no substantial question of law arose.

4. Judgment and Analysis: The Tribunal noted the conditions under Section 2(22)(e) and found that the Respondent was not a shareholder of M/s. Goa Golf Club Pvt. Ltd. The Tribunal cited precedents and held that deemed dividends cannot be assessed in the hands of a non-shareholder. The Tribunal set aside the Assessing Officer's additions as deemed dividends in the hands of the non-shareholder assessee.

5. Legal Precedent: The Division Bench's judgment in Commissioner of Income Tax vs. Universal Medical Pvt. Ltd. was referenced, emphasizing that dividends must be taxed in the hands of shareholders. The Tribunal's decision was upheld, stating that the disputed amount could not be taxed as deemed dividend in the hands of the non-shareholder assessee.

6. Conclusion: Considering the legal provisions and precedents, the Court rejected the Appeal, as the Respondent was not a shareholder of M/s. Goa Golf Club Pvt. Ltd., and thus, the disputed amount could not be treated as deemed dividend under Section 2(22)(e) of the Income Tax Act. No substantial question of law was found to arise in the case.