9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2014 (10) TMI 609 - AT - Income TaxDeemed dividend u/s 2(22)(e) Loan received from M/s. Morgan Credits (P) Ltd. - Business of investment in shares/securities of listed companies - Held that - The assessee-company is not a shareholder holding the required percentage of shares in any of the two companies Following the decision in COMMISSIONER OF INCOME TAX Versus ANKITECH PVT LTD. & OTHERS 2011 (5) TMI 325 - DELHI HIGH COURT - such a loan or advance given to the shareholders or to a concern, would not qualify as dividend. It has been made so by legal fiction created under s. 2(22) (e) of the Act - Thus, by a deeming provision, it is the definition of dividend which is enlarged. Legal fiction does not extend to shareholder - under no circumstance, it could be treated as shareholder/member receiving dividend - If the intention of the legislature was to tax such loan or advance as deemed dividend at the hands of deeming shareholder , then the legislature would have inserted deeming provision in respect of shareholder as well, that has not happened - the loan of ₹ 27.75 crores received is not to be treated as deemed dividend u/s 2(22)(e) of the IT Act Decided in favour of asssessee.
Issues Involved:
1. Whether the amount of Rs. 27.75 crores paid by M/s. Morgan Credits Pvt. Ltd. to HDFC Ltd. on behalf of the assessee company should be treated as deemed dividend under Section 2(22)(e) of the Income-tax Act, 1961. 2. Whether the assessee company is a shareholder in the company which advanced the loans. Issue-wise Detailed Analysis: 1. Treatment of Rs. 27.75 Crores as Deemed Dividend: The primary issue revolves around whether the payment of Rs. 27.75 crores by M/s. Morgan Credits Pvt. Ltd. to HDFC Ltd. on behalf of the assessee company should be classified as deemed dividend under Section 2(22)(e) of the Income-tax Act, 1961. The Assessing Officer (AO) treated this amount as deemed dividend, citing that a common shareholder, Ms. Rakhi Kapoor, held substantial shares in both companies. The AO's stance was based on the fact that both companies were closely held, and the directors were common. However, the CIT (A) deleted the addition, emphasizing that the assessee was not a shareholder in M/s. Morgan Credits Pvt. Ltd., nor was M/s. Morgan Credits Pvt. Ltd. a shareholder in the assessee company. The CIT (A) referenced the Delhi High Court's decision in CIT vs. Ankitech (P) Ltd., which clarified that an entity must be a registered shareholder to be liable for deemed dividend under Section 2(22)(e). The CIT (A) also cited the Delhi High Court's rulings in M/s. Gopal Clothing (P) Ltd. vs. CIT and M/s. Navyug Promoters (P) Ltd. vs. CIT, which reinforced that the provisions of Section 2(22)(e) apply only to registered shareholders. 2. Shareholding Status of the Assessee Company: The second issue pertains to whether the assessee company held the requisite shareholding in the company that advanced the loan. The CIT (A) and the tribunal found that the assessee company did not hold any shares in M/s. Morgan Credits Pvt. Ltd., and vice versa. This finding was crucial because, according to the legal provisions and judicial precedents, only a registered shareholder can be taxed for deemed dividend under Section 2(22)(e). The tribunal upheld the CIT (A)'s decision, dismissing the revenue's appeal. The tribunal noted that the issue was covered by the Delhi High Court's decision in CIT vs. Ankitech (P) Ltd., which clearly stated that deemed dividend provisions apply only to registered shareholders. The tribunal also referenced the Delhi High Court's decision in CIT vs. Arvind Kumar Jain and CIT vs. Antitech Pvt. Ltd., which supported the view that business transactions not involving shareholding do not attract deemed dividend provisions. Conclusion: The tribunal concluded that the Rs. 27.75 crores paid by M/s. Morgan Credits Pvt. Ltd. to HDFC Ltd. on behalf of the assessee company was not a loan or advance but a business transaction. Therefore, it should not be treated as deemed dividend under Section 2(22)(e) of the Income-tax Act, 1961. The tribunal dismissed both the revenue's appeal and the assessee's cross-objection, upholding the CIT (A)'s decision. The order was pronounced in open court on August 22, 2014.
|
