2016 (3) TMI 965 - AT - Income Tax

Deemed dividend u/s.2(22)(e)- CIT(A) allowed part relief - Held that - CIT(A) after considering the ledger account of the assessee in the books of the company sustained an amount of ₹ 3,44,689/- being the amount outstanding against the assessee out of the addition of ₹ 13,96,057/- made by the AO and deleted the balance amount of ₹ 10,51,368/-. The Revenue is not in appeal before us for the relief granted by the CIT(A). We find the CIT(A) had rejected the contention of the assessee that the advance given by the company to the assessee was for the purpose of business in absence of any evidence given by the assessee. Before us also the Ld. Counsel for the assessee could not justify that the advance given by the company to the assessee is for business purposes. Under these circumstances and in absence of any contrary material brought to our notice by the Ld. Counsel for the assessee against the order of the CIT(A), we find no infirmity in the order of the CIT(A). In our opinion, the order of the CIT(A) is justified under the facts and circumstances of the case since the maximum amount advanced by the company to the assessee which is outstanding at any time during the year is ₹ 3,44,689/-. - Decided against assessee

Issues Involved:

1. Validity of reassessment proceedings under Section 147 of the Income Tax Act.
2. Addition under Section 2(22)(e) of the Income Tax Act as deemed dividend.

Issue-wise Detailed Analysis:

1. Validity of Reassessment Proceedings under Section 147 of the Income Tax Act:

The first issue pertains to the challenge against the validity of reassessment proceedings initiated under Section 147 of the Income Tax Act. The assessee did not press this ground of appeal, and the Departmental Representative had no objection to this. Consequently, this ground was dismissed as 'not pressed'.

2. Addition under Section 2(22)(e) of the Income Tax Act as Deemed Dividend:

Case 1: ITA No.1863/PN/2012 (A.Y. 2004-05):

The assessee challenged the addition of Rs. 13,96,057 made by the Assessing Officer (AO) under Section 2(22)(e) of the Income Tax Act, which pertains to deemed dividends. The AO noted that the assessee, a director and shareholder of Sunako Construction Pvt. Ltd., received an advance/loan of Rs. 2,31,164 from the company. The AO considered the accumulated profits of the company, amounting to Rs. 13,96,057, and made an addition of this amount to the assessee's total income as deemed dividend.

The assessee argued that the advances were towards the sale of land and were made in the course of business operations, thus not constituting deemed dividends. The assessee also contended that even if considered as deemed dividend, it should be restricted to the extent of accumulated profits, which was Rs. 5,80,044.

The Commissioner of Income Tax (Appeals) [CIT(A)] sustained an amount of Rs. 3,44,689 out of the addition of Rs. 13,96,057 made by the AO, providing relief of Rs. 10,51,368. The CIT(A) observed that the MOU signed between the assessee and the company did not indicate a genuine transaction and appeared to be a device to avoid tax. The CIT(A) concluded that the advances made by the company constituted deemed dividends in the hands of the assessee, but restricted the addition to Rs. 3,44,689, considering the credit balance in the assessee's account.

Upon appeal, the Tribunal upheld the order of the CIT(A), finding no infirmity in the decision, as the maximum amount advanced by the company to the assessee outstanding at any time during the year was Rs. 3,44,689. The grounds raised by the assessee were dismissed.

Case 2: ITA No.1864/PN/2012 (A.Y. 2004-05):

The only issue in this appeal was regarding the addition of Rs. 2,59,094 made by the AO under Section 2(22)(e) of the Income Tax Act as deemed dividend. The AO noted that the assessee, a director of Sunako Construction Pvt. Ltd., received an advance of Rs. 2,59,094 from the company. After setting off certain amounts, the AO treated the remaining amount as deemed dividend.

The CIT(A) upheld the AO's action, noting that the accumulated profit of the company was Rs. 13,96,057 and the advance of Rs. 2,59,094 was rightly taxed as deemed dividend. The CIT(A) rejected the assessee's contention that the amount was for reimbursement of expenses, citing various judicial decisions.

The Tribunal found no infirmity in the order of the CIT(A) and upheld the addition, as the company had accumulated profits and had given a loan to the director. The grounds raised by the assessee were dismissed.

Conclusion:

The appeals filed by the respective assessees were dismissed, and the orders of the CIT(A) were upheld, confirming the additions under Section 2(22)(e) of the Income Tax Act as deemed dividends. The Tribunal found the CIT(A)'s decisions to be well-reasoned and justified under the facts and circumstances of the cases.

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