2015 (7) TMI 244 - AT - Income Tax

Addition made u/s 2(22)(e) for deemed dividend - advance received from sister concern - CIT(A) deleted the addition - Held that - We are not inclined to interfere in the order of ld. CIT(A) who has deleted the impugned addition of ₹ 58,12,248/- made u/s 2(22)(e) on account of advance received from sister concern. The assessee company does not hold a share in lender company from which it had received deposit then it cannot be treated to be a deemed dividend under section 2(22)(e) of the Act. It is an undisputed fact that assessee is not a shareholder of lender company, therefore, the deposit received by the assessee from said lender companies was an inter corporate deposit and not a deemed dividend, therefore, CIT(A) was justified in deleting the addition - Decided in favour of assessee. Disallowance of foreign travel expenditure - CIT(A) deleted the addition - Held that - As decided in case of Jewel Consumer Care Pvt. Ltd. vs. ACIT 2010 (10) TMI 1013 - ITAT AHMEDABAD from the facts of the case that the assessee submitted two reports which contained that the assessee visited Germany to negotiate supply of spares for the company s machines and also understand certain technical issues related to the operations of the machines. In view of these facts, the assessee incurred this foreign traveling expenditure. We find no evidence that these tour expenditures are not for the purpose of the business rather it is for negotiating for spares and purchases of manufacturing machinery of tooth brushes, the visit was undertaken by the Managing Director. We find that the tour expenditure incurred by the assessee company was for the purpose of business wholly and exclusively. CIT(A) was justified in deleting the addition - Decided in favour of assessee. Addition of repairs for excavation of pond, purchase of wood shaft, ply, Burma teak wood, tiles etc. - revenue v/s capital expenditure - CIT(A) deleted the addition - Held that - Some important principles have been culled out on the issue on the basis of various judicial pronouncements. An expenditure which involves mere replacement of a part of the machine and not the entire machine, or does not result in the creation of any new asset, cannot be termed as capital expenditure. Therefore, the impugned repair expenditure would amount to a revenue expense and it would qualify for deduction as repairs and maintenance. In view of this, we find no infirmity in the order of CIT(A).- Decided in favour of assessee. Deduction under section 80IA - CIT(A) allowed claim after considering the report of Chartered Engineer - Held that - The issue is covered in favour of assessee by the decision of the Tribunal in assessee s own case 2010 (11) TMI 935 - ITAT AHMEDABAD and in the case of Baroda Precimould Pvt. Ltd. vs. ACIT 2010 (9) TMI 1053 - ITAT AHMEDABAD wherein held the assessee must not be denied the claim of deduction under Section 80IA merely on this technical ground. We hereby direct the AO to allow the claim as per the law.- Decided in favour of assessee.

Issues Involved:
1. Deletion of addition made under section 2(22)(e) of the Act on account of deemed dividend.
2. Deletion of disallowance of foreign travel expenditure.
3. Deletion of addition made on account of repairs, treating the same as capital in nature.
4. Deletion of addition of deemed dividend in another appeal.
5. Allowing deduction under section 80IA of the Act.

Issue-wise Detailed Analysis:

1. Deletion of Addition Made Under Section 2(22)(e) of the Act on Account of Deemed Dividend:
The Assessing Officer (AO) added Rs. 58,12,248 as deemed dividend under section 2(22)(e) of the Act, based on loans received from sister concerns where a common shareholder held more than 20% shares in both the assessee company and the lender companies. The CIT(A) deleted the addition, referencing previous ITAT decisions in similar cases of the assessee's group companies and the ITAT Special Bench decision in ACIT vs. Bhaumik Colour Pvt. Ltd., which held that section 2(22)(e) does not apply if the loan is to a person who is not a shareholder of the lender company. The Gujarat High Court in CIT vs. Daisy Packers Pvt. Ltd. also supported this view, affirming that the deposit received by a non-shareholder cannot be treated as deemed dividend. The Tribunal upheld the CIT(A)'s deletion of the addition, agreeing that the assessee was not a shareholder in the lender companies, thus the deposits were inter-corporate deposits and not deemed dividends.

2. Deletion of Disallowance of Foreign Travel Expenditure:
The AO disallowed Rs. 10,91,373 of foreign travel expenses, claiming the assessee failed to establish the expenses were for business purposes. The CIT(A) deleted the disallowance, and the Tribunal upheld this decision, referencing a similar case (Jewel Consumer Care Pvt. Ltd. vs. ACIT) where the Tribunal found that foreign travel expenses incurred for negotiating supply and understanding technical issues related to business operations were for business purposes. The Tribunal found no evidence suggesting the expenses were not for business purposes and upheld the CIT(A)'s deletion of the disallowance.

3. Deletion of Addition Made on Account of Repairs, Treating the Same as Capital in Nature:
The AO treated Rs. 1,01,804 spent on repairs (excavation of pond, purchase of wood shaft, ply, etc.) as capital expenditure. The CIT(A) allowed the expenditure as revenue in nature, stating it was for repairs and replacements. The Tribunal upheld the CIT(A)'s decision, noting that the expenditure was for replacing parts of existing assets and did not create new assets, thus qualifying as revenue expenditure.

4. Deletion of Addition of Deemed Dividend in Another Appeal:
In ITA No. 2617/Ahd/2010, the AO added Rs. 20,00,000 as deemed dividend under section 2(22)(e) due to a loan from Amigo Brushes where a director held significant shares in both companies. The CIT(A) deleted the addition, following the same rationale as in the previous issue, that the assessee was not a shareholder in the lender company. The Tribunal upheld the CIT(A)'s deletion, referencing its detailed discussion in ITA No. 2674/Ahd/2010 and maintaining that the deposits were not deemed dividends.

5. Allowing Deduction Under Section 80IA of the Act:
The AO denied the deduction under section 80IA, arguing the assessee was not registered as a Small Scale Industrial Undertaking (SSI) and had plant and machinery investments exceeding Rs. 3 crores. The CIT(A) allowed the deduction, stating that the assessee met the criteria for SSIU as per section 80IB(ii) and the notification under section 11B of the Industries (Development and Regulation) Act, 1941. The Tribunal upheld the CIT(A)'s decision, noting that the assessee's investment in plant and machinery, after permissible exclusions, was within the Rs. 3 crores limit and that registration as an SSIU was not a precondition for the deduction. The Tribunal referenced similar decisions in the assessee's own case and other cases, affirming the CIT(A)'s allowance of the deduction under section 80IA.

Conclusion:
Both appeals filed by the Revenue were dismissed, with the Tribunal upholding the CIT(A)'s decisions on all issues. The Tribunal found that the additions made by the AO were not justified based on the facts and legal precedents, and the assessee's claims for deletions and deductions were valid. The judgment was pronounced in the open Court on June 29, 2015.

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